Fraudster successfully appeals sex conviction
A FRAUDSTER has had a sex offence wiped from his criminal record after a successful appeal.
Nicholas Birch (30) had also been placed on the Child Sex Offender Register after being found guilty at a Dunedin District Court trial nearly a year ago of performing an indecent act on a 15yearold boy.
He took his case to the Court of Appeal whose judgement, released yesterday, quashed the sex conviction and withdrew him from the register.
The teen complainant arranged that he would masturbate in front of Birch for cash but, contrary to their agreement, the defendant allegedly touched him.
A charge was laid which said the incident took place ‘‘on or about August 29, 2016’’.
However, Birch said they met twice.
He told police on the second meeting there was mutual touching.
Judge Peter Rollo amended the charge, extending the time frame to ‘‘between August 24 and September 6’’.
Counsel Len Andersen argued that decision had drastically changed the course of the trial and caused a miscarriage of justice.
Justice Joe Williams concurred: ‘‘the course adopted by the judge was not permissible.’’
‘‘By adopting the course the judge adopted, he sought to squeeze allegations in respect of two quite separate transactions into one,’’ the appeal judge said.
He said a second charge should have been laid in relation to the second incident, which was a matter for the prosecution.
‘‘There was no indication the prosecutor was minded to bring such a charge,’’ Justice Williams said.
‘‘The prejudice to Mr Birch arose because he was then required to give evidence to address the age issue in relation to what he said was the second of the two events.’’
Birch was also found guilty at trial of obstructing the course of justice, after he remotely wiped his cell phone while it was held by police.
Mr Andersen sought to overturn that conviction too, but was unsuccessful.
Because Birch had almost served the oneyear prison term he received, the Court of Appeal did not order a retrial.
The man had been previously jailed for 23 months in 2015 after he stood before the Alexandra District Court and vouched for a criminal in the dock, claiming to represent a wealthy benefactor.
He offered to pay more than $25,000 the burglar owed in reparation, which saw the man receive a lowered sentence.
However, it was discovered Birch and the man had been cellmates at Otago Corrections Facility, and it was all a ruse.