Trial tactic misfires

The lawyer for a Ka¯ piti councillor found guilty of indecent assault says the measuring of her client’s penis was a trial tactic that misfired.

David Scott is appealing both his conviction and sentence at the Court of Appeal in Wellington.

Scott was found guilty of indecent assault after he pressed himself against a female Ka¯ piti Coast District Council employee during a morning tea break in April 2017.

The 72-year-old was fined $1500 for the indecent assault.

During the trial last year, Scott’s penis was measured by a doctor with a wooden ruler to determine if it was the same length as what the victim felt pressing into her.

The measurement was suppressed. On Tuesday last week, his lawyer Barbara Hunt said that measuring tactic was like a “schoolboy’s locker room joke that went wrong”.

It would have been shocking and unsettling for the jury, she said.

“It was degrading to the appellant, it was insulting to the complainant, it attracted a frenzy of attention.”

Hunt argued the measurement was an error that risked a miscarriage of justice.

“If it hadn’t happened that way, it could well have been a different outcome,” she said.

Hunt also pointed to additional medical evidence which should have been called at trial, the details of which are suppressed pending the outcome of the appeal.

She said the seriousness of the offending had also been elevated in sentencing.

Crown lawyer at the appeal Simon Barr said none of the disputed decisions were fundamental trial decisions, but were all decisions of trial tactics or strategy.

He said those tactics were used by one of the most senior defence lawyers in Wellington who was well respected across the country.

“This was not a situation where there was a relatively junior trial counsel making decisions, quite the contrary.”

The judge was acutely aware of where the offending sat on the spectrum and did not treat it in a disproportionate way, Barr said.

Scott has previously said he wants to remain a councillor, something he can’t do if he keeps his conviction.

The council’s website says Scott is currently on a leave of absence.

The Court of Appeal’s decision is reserved.