Jury finds man guilty of two charges

Otago Daily Times - - Court & General - KAY SIN­CLAIR

CON­VICTED Dunedin con­man Ni­cholas Birch was due for re­lease from prison next month af­ter serv­ing a jail term for ly­ing to a judge.

In­stead, the 30­year­old Dunedin­based horse chiropractor now faces time be­hind bars af­ter be­ing con­victed of at­tempt­ing to ob­struct the course of jus­tice and com­mit­ting an in­de­cent act on a 15­year­old boy.

Birch had de­nied both charges but was found guilty by a jury yes­ter­day, fol­low­ing his trial in the Dunedin District Court.

Judge Peter Rollo gave the weep­ing pris­oner a warn­ing un­der the ‘‘three strikes’’ leg­is­la­tion be­fore re­mand­ing him in cus­tody for sen­tence in Novem­ber.

Birch has al­most 100 con­vic­tions, mainly for fraud, some in­volv­ing falsely promis­ing to pay young men tens of thou­sands of dol­lars to per­form sex acts.

The two lat­est con­vic­tions arise from ac­cu­sa­tions he did an in­de­cent act on a 15­year­old boy then wil­fully at­tempted to ob­struct the course of jus­tice be­tween Oc­to­ber 14 and 16 by fac­tory re­set­ting his iPhone af­ter po­lice had seized it when they in­ter­viewed, ar­rested and charged him with sex­ual in­de­cency against the boy.

He was said to have re­motely ac­cessed the phone be­fore po­lice could ex­am­ine it, and that he re­moved texts and other in­crim­i­nat­ing ma­te­rial link­ing him to the al­leged sex­ual of­fend­ing against the 15­year­old, be­tween Au­gust 24 and Septem­ber 6 last year.

In ev­i­dence ear­lier this week, the boy said the of­fend­ing hap­pened about Au­gust 29 when Birch picked him up in his blue Ford Ranger, drove to Ket­tle Park and got him to com­mit a sex­ual act in front of him be­fore touch­ing him two or three times which the boy said he found ‘‘creepy’’.

He said Birch had said he would pay him $500 for per­form­ing the sex act. He also said Birch asked him to ‘‘suss out a three­some’’ and he agreed to do that be­cause he wanted the money. The three­some did not hap­pen and the boy said there was no other sex­ual in­ci­dent with Birch.

But Birch said there were two in­ci­dents, the first about Au­gust 29 when the boy per­formed a sex act, and noth­ing else hap­pened and a sec­ond in­ci­dent, a few days later, af­ter he had de­cided against a three­some as he did not like the look of the per­son the boy had found.

Birch said he made an ex­cuse to the third per­son then drove the boy back to Ket­tle Park where there was con­sen­sual mu­tual touch­ing.

Birch also said he be­lieved the boy was 19 or 20 as he had been told that by an­other per­son, had also seen and pho­tographed the boy’s Face­book page show­ing an Oc­to­ber 1995 date of birth and he be­lieved he had also asked the boy his age.

Be­cause of Birch’s ev­i­dence, Judge Rollo split the in­de­cency charge into two sep­a­rate in­ci­dents, one re­lat­ing to the first in­ci­dent on or about Au­gust 29, the sec­ond the one de­scribed by Birch where he ad­mit­ted con­sen­sual touch­ing.

Af­ter the jury had given its ver­dict, the judge asked the fore­man which of the in­ci­dents the ju­rors had made their find­ing on and was told it was the sec­ond in­ci­dent.

That was the one the boy had not men­tioned but which Birch said took place, with the boy’s con­sent and with Birch be­liev­ing on the ba­sis of the in­quiries he had made that the boy was over 16.

Dur­ing his sum­ming up Judge Rollo told the ju­rors ‘‘this is not a court of morals’’.

He said there was no doubt the case con­cerned as­pects of life ‘‘most of us have no ex­pe­ri­ence of’’. But ho­mo­sex­u­al­ity was law­ful in New Zealand and peo­ple of that per­sua­sion in­volved them­selves in sex­ual acts in the same way as het­ero­sex­ual peo­ple did.

Birch ac­knowl­edged he was gay and could not be crit­i­cised for that. The only crit­i­cism might be whether what he was in­volved in was un­law­ful, the judge said.

The Crown had to sat­isfy them be­yond a rea­son­able doubt that the de­fen­dant’s be­hav­iour to­wards the boy was in­de­cent, un­law­ful and that Birch knew the boy was un­der­age and was not con­sent­ing. There was a limited de­fence to the charge if the de­fen­dant could prove on the bal­ance of prob­a­bil­i­ties he had taken rea­son­able steps to find out the boy’s age and be­lieved on rea­son­able grounds he was over 16 and was con­sent­ing. Birch said he had done that.

In terms of the iPhone, there had been ex­pert ev­i­dence about how the phone could be re­set to the fac­tory set­tings, one of the ways in­volv­ing re­mote ac­cess which was what the Crown said Birch had done af­ter leav­ing the po­lice sta­tion.

And although there was no di­rect ev­i­dence as to who had been re­spon­si­ble for the re­set­ting, the Crown said Birch was the per­son with the mo­tive — to re­move in­crim­i­nat­ing ma­te­rial — and the means to do it.

Birch said sev­eral peo­ple had ac­cess to his iPhone, which was his work phone. They knew his user name and ac­cess code so they could ac­cess the phone for busi­ness pur­poses.

De­fence coun­sel Len An­der­sen raised the pos­si­bil­ity of the phone re­set­ting it­self for some rea­son and sug­gested that to the ex­pert wit­ness. But the wit­ness said he had never seen that in eight years as a spe­cial­ist and hav­ing ex­am­ined about 1000 cell­phones.

Newspapers in English

Newspapers from New Zealand

© PressReader. All rights reserved.