Birchall v Police - [2020] NZCA 669

IN THECOURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA580/2020
[2020] NZCA 669

BETWEEN	PHILLIP BRIAN BIRCHALL Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	2 December 2020
Court:	French, Whata and Mander JJ
Counsel:	Appellant in person M L Wong for Respondent
Judgment:	18 December 2020 at 11 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted.
BThe appeal is allowed.
CThe conviction for assault is set aside.
DA retrial is ordered.

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REASONS OF THE COURT

(Given by Whata J)

Mr Birchall was charged and, following a trial before Judge Tompkins in the District Court, was found guilty of one charge of common assault.[1] He was self‑represented. Mr Birchall appealed against his conviction to the High Court on the basis he had a defence to the charge under s 53(1) of the Crimes Act 1961 — the defence of moveable property — and that he was deprived of the ability to advance that defence because Judge Tompkins did not allow him the opportunity to present any submissions. Cooke J found the District Court erred and “an unfair approach was adopted to the hearing”[2]. However, Cooke J concluded there was no real risk the outcome of the trial was affected because “s 53 was not made out on the facts established at trial”.[3] The appeal was therefore dismissed. Mr Birchall seeks leave to appeal against the High Court decision.

Leave to appeal

[1]Summary Offences Act 1981, s 9; and Police v Birchall [2020] NZDC 15990.

[2]Birchall v Police [2020] NZHC 2378 [High Court decision] at [35].

[3]At [58].

Leave to appeal is required. In light of Cooke J’s finding that the trial process was unfair, we are satisfied that a miscarriage of justice may have occurred or may occur unless the appeal is heard, and accordingly leave to appeal should be granted.[4]

Background

[4]Criminal Procedure Act 2011, s 237(2)(b).

The background facts are not disputed and are summarised by Cooke J as follows:[5]
[5]High Court decision, above n 2.
[4] The complainant operates a mechanics business. Around the middle of March 2019 Mr Birchall needed some work done on his car. He had earlier sought to have that work done by another mechanic who could not do it in a timely fashion, so he called in to see the complainant at the complainant's workshop in Upper Hutt. He was given an estimate for the required work of around $410 all up including GST.
[5] On the morning of 20 March 2020 he dropped his car into the workshop and left it there with an ignition key for the work to be done. He called into the workshop in the middle of the morning to see how the work was going. He spoke briefly with the employee who was working on his vehicle. The employee told him that it was going ok, and probably gave him an estimate of around an hour and a half or so until the work was finished.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Birchall v Police

Details

AGLC: Birchall v Police [2020] NZCA 669
Case: [2020] NZCA 669
Decision Date: 18 December 2020 at 11 am

CaseChat Overview and Summary

In the appeal of Birchall v Police, the Court of Appeal of New Zealand considered whether an appellant, Mr Birchall, had been deprived of a fair trial by the trial judge's failure to allow him to present a defence of moveable property. Mr Birchall, who was self-represented, had been convicted of assault by the District Court and the High Court subsequently dismissed his appeal. The Court of Appeal was asked to determine whether Mr Birchall's appeal against the High Court decision should be heard and whether the conviction should be set aside.

The central issue before the Court of Appeal was whether the trial judge's failure to allow Mr Birchall to present his defence of moveable property under section 53(1) of the Crimes Act 1961 constituted an unfair trial and a miscarriage of justice under section 232(4) of the Criminal Procedure Act 2011. The Court of Appeal found that the trial judge had indeed erred by not allowing Mr Birchall to present his defence and by not explaining the different roles a defendant might exercise during the trial. The trial judge's approach was deemed unfair because Mr Birchall did not understand the distinction between cross-examining prosecution witnesses and presenting his own evidence and submissions.

The Court of Appeal held that the trial was unfair as Mr Birchall's right to a fair trial was breached. The right to a fair trial is an absolute right, and a breach of this right requires the conviction to be quashed, irrespective of whether there was a real risk that the outcome of the trial was affected. The Court of Appeal concluded that the trial miscarried, and the conviction for assault should be set aside. The Court granted the appellant leave to appeal and allowed the appeal, ordering a retrial.

The Court of Appeal's final orders were to grant the application for leave to appeal, allow the appeal, set aside the conviction for assault, and order a retrial.

Orders