Jury finds man guilty of two charges

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.