A defence tactic in the trial of a Kāpiti Coast councillor found guilty of indecently assaulting a Council staff member, has been labelled as degrading to him and insulting to his victim, the Court of Appeal has been told.
David Scott, who was last year found guilty of rubbing his genitals against the woman at a council morning tea, has today asked the Court of Appeal to overturn both his conviction and sentence.
At sentencing he sought a discharge without conviction, saying his roles as a JP and Rotarian could be affected if that was not granted, but Judge Peter Hobbs convicted him and fined him $1500.
Scott's lawyer Barbara Hunt told the Court of Appeal that despite the incident taking place in a crowded room, no one saw the thrusting and grinding which the complainant said had occurred.
She said against that backdrop, the decision was made to measure her client's penis, an action which she described as being like what would be seen in a "schoolboy locker room".
Ms Hunt said it would have been unsettling for the jury and should not have taken place and was such an irregularity, there was a risk it had caused a miscarriage of justice.
She said that at trial Scott had absolutely denied contact with the woman concerned, but Justice Clifford questioned that.
"He said he didn't recall. He didn't deny it happened. That is a different thing."
Ms Hunt asked the Court of Appeal to allow new evidence to be admitted.
She agreed with the Court that the evidence would have been available at Scott's first trial, but said the fact it had not been produced at that stage was an error on the part of his former lawyer.
The Court suppressed details of the new evidence.
Ms Hunt said the sentencing Judge, Peter Hobbs had also made several errors, including elevating the seriousness of her client's offending.
She said the behaviour complained of had overtones of workplace bullying, but if it did occur it was at a low level, there was a generational divide between Scott and his victim and he had a different upbringing and attitude.
"There is a generational divide. He was a senior politician with a different upbringing and attitude. It is unacceptable behaviour but we have to be careful not to elevate the culpability of the offence because of the current political climate."
However the Crown lawyer, Simon Barr questioned Ms Hunt's claim that her client's trial lawyer had made a mistake, saying Scott had the most senior defence counsel in Wellington acting for him at trial, so it was not a case where a relatively junior trial lawyer was making important decisions.
He said Scott said in his appeal statement it was an important part of his defence that any touching he had done of the woman was to protect his groin because he had recently had surgery.
But Mr Barr said the trial lawyer's statement referred to a discussion about that matter.
"The difficulty is that prior to the trial he and trial counsel expressly discussed this topic and trial counsel advised him that he was skeptical about his account and it goes without saying that these are the very types of issues trial counsel is advised to advise clients about."
Mr Barr said Scott was now effectively saying he wished in hindsight he had run his defence differently.
The Court of Appeal reserved its decision.