B v Police HC Auckland CRI 2006-404-265

[2008] NZHC 289

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-265

BETWEEN  B

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         10 March 2008

Appearances: Nigel Cooke for Appellant

Emma Finlayson-Davis for Respondent

Judgment:      10 March 2008

JUDGMENT OF HARRISON J

SOLICITORS

Nigel Cooke (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

B V POLICE HC AK CRI 2006-404-265  10 March 2008

[1]      Mr B   was convicted in the District Court at North Shore on

13 March 2006 on charges of assault and wilful damage.  He was fined $200 on each charge and ordered to pay costs of $130.

[2]      Mr B   filed a notice of appeal in this Court against his conviction on two grounds: (1) that the learned District Court Judge, Judge David Wilson QC, was wrong in fact and law and (2) that his counsel, Mr John Mather, refused to follow his instructions and failed to call evidence as requested.  It is unnecessary to traverse the procedural history of the appeal in this Court; suffice it to say that a number of Judges have expressed concern at the delays in its prosecution.

[3]      One of the reasons for delay is that Mr B   has frequently changed counsel in this Court.  However, with his engagement of Mr Nigel Cooke, the appeal has taken an appropriate focus.   The first ground of appeal was not pursued.   As Mr Cooke’s argument has proceeded it is plain that Mr B   relies on the second, that of counsel incompetence or error.

[4]      In support Mr B   swore and filed an affidavit on 25 January 2008.  He deposes that he was granted legal aid and that Mr Mather was assigned as counsel. He says that he put his trust in Mr Mather but that the latter failed  to  prepare properly  for  his  defence  –  for  example;  Mr B    says  he  left  messages  on Mr Mather’s telephone requesting contact; that, although Mr Mather replied, he was unable to secure an appointment on the stated ground that he was too busy and no appointment ‘was ever set up as a result of telephone calls’; that there was never ‘a telephone discussion of the merits of the police case; and that no brief of evidence was ever prepared.

[5]      Mr B   goes on to say that he never had an appointment with Mr Mather prior to the scheduled fixture for the defended hearing in the District Court.  He says that he was unable to meet Mr Mather in his chambers.  When the case was called Mr B   says ‘it was stood down for five minutes’.  He says further:

…  I  had  asked  Mr  Mather  to  adjourn  the  hearing.    I  complained  to Mr Mather that we had not discussed the case; he had inadequate or no instructions from me as to my defence and I also produced to him a doctor’s

letter in support of that application.  The application for an adjournment was refused, the case proceeded, and I was convicted.

[6]      Mr B  ’s affidavit deposes to a belief that he did not receive a fair trial in the circumstances, particularised as the existence of medical grounds for an adjournment which the Judge dismissed and four allegations of negligence against Mr Mather.

[7]      Mr Mather swore an affidavit in answer on 19 February 2008.  It is a decisive rebuttal of Mr B  ’s allegations, and exposes his affidavit as a gross untruth. Mr Mather    has    produced    evidence    of    extensive    attendances    upon    and communications with Mr B   commencing with a conference of over an hour’s duration on 7 December 2005.   Previously he had attended on the police and the Court  to  view  camera  footage  and  prepare  himself  for  obtaining  Mr B  ’s instructions.   At that first conference Mr Mather drafted a comprehensive brief of evidence.  A copy was sent to Mr B   for his consideration and revision.

[8]      Thereafter Mr Mather attended another briefing with Mr B   of over an hour’s duration on 6 March 2006.   Mr Mather continued full preparation for the hearing.  He attended in Court and represented Mr B   at the defended hearing on 13 March 2006.  In total he recorded 18 hours of attendances.

[9]      Mr Mather has made himself available at Court this morning for cross- examination.  However, Mr Cooke now advises that Mr B   does not pursue his primary ground of appeal alleging counsel’s incompetence.   I need only add that Mr Mather’s  performance  on  Mr B  ’s  behalf,  both  in  preparation  and  his conduct of the hearing, was faultless.  It is an exemplar for the standard of conduct expected of counsel conducting a defended summary trial in the District Court. Mr Mather  prepared  thoroughly  and  with  Mr B  ’s  best  interests  in  mind. Moreover, Mr Mather’s affidavit confirms Mr B  ’s willingness to resort to filing a fabricated affidavit and mislead the Court in order to manufacture a ground of appeal which did not exist.

[10]     Faced with this development (Mr Cooke only saw Mr Mather’s affidavit for the first time on 7 March 2008) Mr Cooke has reoriented the principal ground of

Mr B  ’s  appeal.    He  now  says  that  Judge  Wilson  wrongly  exercised  his statutory powers in refusing to grant Mr B  ’s application for an adjournment: s 45 Summary Proceedings Act 1957.   Consequently he says the Judge failed to observe the principles of natural justice: s 27 New Zealand Bill of Rights Act 1990. He acknowledges, of course, that this Court’s power to interfere is limited to satisfaction that a real injustice has been done to the parties.

[11]     Mr Cooke is correct that Judge Wilson did not give a reasoned decision for refusing  Mr B  ’s  application  for  an  adjournment.     Mr Mather,  who  has remained in Court this morning, has kindly deciphered or translated his full notes of events that occurred that morning.  The Judge apparently considered a medical report provided by Dr Mark Groen, Mr B  ’s general practitioner, on 13 March 2006. His verbatim observation was that it ‘mainly reports Mr B  ’s views’.  On this ground Judge Wilson apparently dismissed Mr B  ’s application based upon medical incapacity.

[12]     It appears, however, that on instructions Mr Mather advanced other grounds in support of the application for adjournment, all related to late submission of prosecution documents.  In order to overcome any prejudice on this account, Judge Wilson stood the hearing down from 11.00 am until after 2.15 pm.  Mr Mather was able to take further instructions and prepare accordingly.

[13]     It  may  have  been  preferable  if  the  Judge  had  delivered  a  decision  on Mr B  ’s  application  for  adjournment  but  I  am  acutely  conscious  of  the pressures imposed upon a judicial officer in the summary criminal jurisdiction of the District Court.  Dr Groen’s report says this in total:

[Mr B  ] complains of bitemporal headaches and aching neck, back and shoulders following a control and restraint manoeuvre performed at the district court on 9/3/06.

He has a small graze R forehead and some greenish contusion inferior to this R temple region.  He also has a greenish bruise R arm inferior to the deltoid anteriorly.  He has limited neck movement to the right and reduced shoulder extension.

He feels he is unable to attend a hearing this a.m. as he is not well and not in a clear state of mind for a court appearance.

[14]     The document is, as Judge Wilson correctly observed, principally a report of Mr B  ’s complaints and opinion of his own inability to attend Court and give evidence.  The only clinical input is a record of physical symptoms such as a grazed forehead and bruise and limited neck movement.   Otherwise, and I regard this as decisive, the doctor did not certify that Mr B   was or may be unwell or unable to give satisfactory evidence on his own behalf at trial.

[15]     Mr B    did  indeed  give  evidence  in  forceful  terms.    He  denied  the complainant’s account of circumstances leading to the charges.   Judge Wilson did not  find  Mr B    to  be  a  credible  witness.  He  preferred  the  complainant’s account.  He also dismissed the availability of the defence of self defence.  He was satisfied beyond reasonable doubt that Mr B   committed both crimes.

[16]     Judge  Wilson’s  decision  to  refuse  an  adjournment  is  not  vitiated  by his failure to give reasons.  At best for Mr B   it means that I am entitled to revisit the issue based on the same evidence that was before the Judge.  I am in no doubt that he exercised his discretion correctly. Mr B   did not make out a proper medical ground for seeking an adjournment.   Thus, given his abandonment of his primary ground of counsel’s incompetence and his inability to establish that Judge

Wilson erred, Mr B  ’s appeal against conviction is dismissed.

Rhys Harrison J