B v Police HC Dunedin CRI 2006-412-000007

[2006] NZHC 527

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2006-412-000007

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         18 May 2006

Appearances: Mr C D Savage for Appellant

Mr D P Robinson for Respondent

Judgment:      18 May 2006

ORAL JUDGMENT OF RANDERSON J

Solicitors:           Crown Solicitor, Dunedin

Copy to:             O’Driscoll & Marks, Dunedin

B V NEW ZEALAND POLICE HC DUN CRI 2006-412-000007  18 May 2006

[1]      On 6 March 2006 the appellant was found guilty in the District Court on one charge of threatening to kill.  He was convicted and ordered to come up for sentence if called upon within 12 months.  Name suppression was refused but the presiding Judge made an interim order for suppression of name until 4.00 p.m. on 7 March

2006 so that counsel could obtain instructions in relation to any appeal against name suppression.

[2]      Two notices of appeal have been filed.  One was received on 7 March 2006 which was an appeal against refusal to grant name suppression.  On the same day a separate notice of appeal against conviction was filed.   In the appeal against conviction the appellant stated:

I was convicted of the charge of threatening to kill although the learned District Court Judge could not have been satisfied beyond reasonable doubt on the one on one evidence at my trial.

I  am  also  appealing  against  the  refusal  of  the  Judge  to  order  name suppression.

[3]      After  the  filing  of  this  notice  of  appeal  the  appellant  instructed  present counsel Mr Savage who was not counsel at the time of the hearing in the District Court.  Mr Savage has sought an adjournment this morning on the grounds that he does not have sufficient instructions to proceed with the appeal.  He has informed the Court that he was instructed initially on 15 March and met the appellant again on

6 April.  Having received no further instructions Mr Savage wrote to the appellant on

26 April and met him again this week.

[4]      Mr  Savage advises that  Mr B   has raised  issues of competence of  his previous counsel asserting that another witness or witnesses should have been called in his defence.  However none of the usual procedures have been followed where an allegation of this kind is made.  In particular, points on appeal have not been filed nor  have  any  written  submissions  been  prepared  and  offered  to  the  Court. Importantly, previous counsel has not had any opportunity to respond to any allegations of this kind.

[5]      Mr  Robinson  for the  Crown opposes the  adjournment  and  invites  me  to dismiss the appeals for non prosecution.

[6]      The conviction arises out of a domestic dispute between the appellant and his former partner.  That incident occurred when his partner was collecting their young child in which she stated that the appellant had threatened to kill her father.   That threat was not made verbally but by the appellant holding up a sheet of paper with the threatening words.   It seems that there had been some difference of opinion between the appellant and his partner’s father and a substantial background of family dispute.   Plainly this was a case in which the Judge was called upon to make a decision on the credibility of the complainant’s account, given that  she and the appellant were the only witnesses to the threat, which was denied by the appellant.

[7]      The Judge accepted the evidence of the appellant’s partner in convicting him but in the circumstances the sentence imposed reflected the Judge’s view of the seriousness of the matters at issue.

[8]      In the circumstances it would seem difficult to mount a successful appeal against conviction on the grounds alleged but in any event I am satisfied that the appellant is aware of the hearing date today and has not taken the trouble to attend Court nor has he given proper instructions to counsel despite the lapse of nearly two months between the time he first instructed Mr Savage and the hearing date today.

[9]      In the circumstances I accept  Mr Robinson’s submission that the appeals should be dismissed.

[10]     I add that there does not seem to be any merit in the appeal against name suppression.  The Judge referred to this briefly in his decision stating that the charge was a serious one and despite the assertion by the appellant that there could be consequences for his business, the Judge stated that the nature of the sentence would indicate to the appellant’s clients and the community that he had in effect put the appellant on a good behaviour bond rather than dealing with the matter by way of a fine, community work or imprisonment.   The Judge considered there was nothing exceptional which would justify the grant of suppression of name.  The prospects of upsetting that decision on appeal would seem to be remote.

[11]     In  the  circumstances  both  appeals  are  dismissed  for  want  of  proper

prosecution.  There will be no order for the suppression of the appellant’s name.

A P Randerson, J Chief High Court Judge