Birchall v Police
[2020] NZCA 669
•18 December 2020 at 11 am
| IN THECOURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA580/2020 [2020] NZCA 669 |
| BETWEEN | PHILLIP BRIAN BIRCHALL |
| AND | NEW ZEALAND POLICE |
| Hearing: | 2 December 2020 |
Court: | French, Whata and Mander JJ |
Counsel: | Appellant in person |
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.
____________________________________________________________________
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.
[6] Mr Birchall left the workshop. He said that he was expecting a phone call to advise him when the work was finished, and also if the work was going to cost more than the initial estimate.
[7] The complainant said that Mr Birchall had not left a phone number so they were not able to call him. But in any event at around 2.00 or 2.30 pm Mr Birchall turned up to pick up his car. He bought with him a second set of ignition keys because he had left his Eftpos card in the car. He retrieved that card from his car which was parked in the street, and then went into the workshop and approached the mechanic. The mechanic advised Mr Birchall that there had been some unexpected issues and the cost would be about $80 more than the estimate of $410.
[8] This caused Mr Birchall to lose his temper. Judge Tompkins observed that this was inexplicable given that it was a "relatively paltry" increase in cost. The complainant gave evidence that Mr Birchall then “stormed out”. The complainant decided he had better retrieve Mr Birchall's car that was parked out on the street. He cut through a slightly shorter route from the workshop to where the car was, and using the key left with him earlier that day went to unlock the door and drive the car back into the workshop premises.
[9] Very shortly after the complainant arrived at the car Mr Birchall also arrived with his own key. There was then a tussle between the two. The complainant said that Mr Birchall pushed him out of the way twice preventing him from unlocking the car door, and on the third such push the complainant described getting whacked across the chest by Mr Birchall's forearm.
[10] Eventually the complainant stepped back from the driver's door. Mr Birchall entered the car, wound down the window, abused the complainant, saying that it was his car but “adding some obscenities for emphasis” and then drove off.
[11] When engaging in cross-examination of the prosecution witnesses Mr Birchall did not dispute that this tussle had happened at the driver's side door, but stressed that he had been given an estimate and that he was expecting a phone call if the cost of the work was greater than $410 all up including GST. That explanation was provided during Mr Birchall's cross-examination of the complainant and the mechanic.
[12] The Judge recorded that at no stage during that cross-examination did Mr Birchall dispute that there had been a tussle at the driver's door of the car during which Mr Birchall had prevented the complainant from entering the car. Both the complainant, and the employee gave evidence of the tussle. The employee had witnessed it from the adjacent service station.
[13] Mr Birchall stressed while cross-examining that he had offered to pay the original estimate, and had also invited the mechanic to retrieve the rest of the costs by going to court, or using the Motor Trade Association's dispute resolution process.
[14] After setting out those facts Judge Tompkins held:
[12] In those circumstances I am quite satisfied that the police have proved the charge of assault against Mr Birchall irrespective of the contractual dispute that arose prior to the assault. It is clear that the complainant, who had the key that was left in the mechanics workshop, arrived at the drive’s door of Mr Birchall’s car very shortly before Mr Birchall did and there was then a tussle during which Mr Birchall either twice as witnessed by the mechanic, or three times as described by the complainant, pushed the complainant away from the car probably on the third such occasion Mr Birchall's forearm being used to, as the complainant said, “Whack me across the chest,” to get him out of the way.
[13]In those circumstances the charge is proved beyond reasonable doubt and Mr Birchall is convicted.
(footnotes omitted)
As Cooke J also noted, at the close of the prosecution’s case, Mr Birchall elected not to call any evidence. The Judge did not give him an opportunity to present submissions at that point and proceeded to deliver the decision.[6] After the decision was delivered, Mr Birchall said he forgot to mention s 53 of the Crimes Act. The transcript of the hearing then records:
MR BIRCHALL:
I never mentioned that. Is it too late to mention it?
[6]High Court decision, above n 2, at [15].
THE COURT:
It is indeed, that’s why you should have retained a lawyer possibly Mr Birchall, but having concluded that the police have provided the assault beyond reasonable doubt, you are convicted and fined $750. Court costs, $130, there will be an emotional harm reparation payment of $500 to the complainant. …
The defence
Mr Birchall maintained in the High Court and in this Court that, on his version of events, he enjoyed a defence of property pursuant to s 53(1) of the Crimes Act. Section 53(1) states:
53 Defence of movable property with claim of right
(1)Everyone in peaceable possession of any moveable thing under a claim of right, and everyone acting under his or her authority, is protected from criminal responsibility for defending his or her possession by the use of reasonable force, even against a person entitled by law to possession, if he or she does not strike or do bodily harm to the other person.
Given the way the trial unfolded, the only evidence of peaceable possession and claim of right was that given by prosecution witnesses under cross-examination.
The trial errors
The High Court’s findings as to trial error are not disputed. Cooke J found the Judge erred because he neither addressed s 53(1) nor asked whether Mr Birchall wished to advance submissions.[7] In this regard, we agree with the following observations made by Cooke J:
[28] In Forster v Police the High Court allowed an appeal in circumstances where the District Court had not considered the application of s 53(1). Nation J held there was an error because the District Court Judge did not turn his mind to the potential for a s 53(1) defence, and that it needed to be considered even if not expressly raised. Such potential problems are avoided if the Judge checks with both the prosecution and the defence whether there are any particular matters that need to be addressed by way of submission. Here the District Court Judge did not address s 53 in his reasons, and no doubt he would have done so if he had enquired of Mr Birchall whether there was anything further he wanted to say in his defence.
[29] In a busy District Court is it understandable that judges may not see the need for submissions with more straightforward cases. But it may be beneficial for a Judge to ask the prosecution and the defence whether they wish to advance any such submissions, and then make an informed decision. It may also be advisable to give an opportunity for submissions if a party wishes to advance them.
(footnotes omitted)
[7]At [30].
Cooke J also found the Judge erred by not explaining to Mr Birchall the three different roles he might exercise during the trial: to cross‑examine the prosecution witnesses, to give evidence himself and to present submissions to the Court if allowed to do so.[8] We agree with Cooke J that:[9]
The separation between these three roles would not be obvious to someone without familiarity with trial processes. It may well be good practice for judges to explain at the outset of the trial the different roles that a defendant may have when acting for themselves at a Judge alone trial.
[8]At [32].
[9]At [32].
It was apparent that, in the absence of an explanation, Mr Birchall did not understand the difference between his role in asking questions and the role in giving evidence.[10] This, combined with the fact that the Judge did not ask Mr Birchall whether he wished to make submissions, meant the approach adopted to the hearing was unfair.[11]
[10]At [33].
[11]At [34].
Cooke J then turned to consider whether there had been a miscarriage of justice in terms of s 232(4)(a) of the Criminal Procedure Act 2011 (the CPA). That is, whether the identified error created a real risk the outcome of the trial was affected. He said that in the present case the ultimate question was whether the defence under s 53 was made out on the evidence.[12]
[12]At [40].
On this issue, Cooke J found Mr Birchall needed to be in peaceable possession and show he believed he had a right to have possession of his car.[13] Mr Birchall did not give evidence of his own belief that he was entitled to possession of his car and the prosecution witnesses did not give evidence that Mr Birchall believed he had a right of possession even without paying. Consequently, Cooke J concluded, “there was no evidence before the Court that Mr Birchall had that belief”.[14]
[13]At [43] and [44].
[14]At [48].
Cooke J was satisfied Mr Birchall was not in peaceable possession of the vehicle when he pushed the complainant who had been given possession of the car earlier in the day, had the keys to the car and had a lien over it entitling them to possession until the bill for the repairs was paid.[15] It did not matter that the car was parked in the street or that Mr Birchall, when questioning the witnesses, had said that he accessed the car using a second set of keys. Mr Birchall was not entitled to access the car while it was subject to the mechanic’s lien.
[15]At [50] and [57].
Accordingly, Cooke J found that s 53 was “not made out on the facts established at trial” and there had been no miscarriage of justice.[16]
[16]At [58].
Cooke J also noted for completeness that he would not have held that Mr Birchall’s force was excessive, had the s 53 defence otherwise been made out.[17]
Miscarriage of justice under the CPA
[17]At [59].
The threshold test for miscarriage is stated at s 232(4) of the CPA as follows:
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
As stated by this Court in Wiley v R:[18]
[24] The inquiry involves a two-step process: was there an error, irregularity or occurrence in or in relation to or affecting the trial and, if so, did either of the two states of affairs in subs (4)(a) or (b) arise in consequence?
[18]Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.
Under s 232(4)(a) the Court must be satisfied that an error has created a real risk the outcome of the trial was affected. The use of the term “real” means the inquiry is concerned with realistic rather than theoretical possibilities.[19]
[19]At [28].
Miscarriage of justice under s 232(4)(b) arises in cases of unfair trial. As stated by the Supreme Court in R v Condon, the right to a fair trial is an absolute right.[20] Moreover, a breach of the right for any reason means that the conviction must be quashed.[21] Further, if the Court finds there has been an unfair trial in terms of s 232(4)(b), it is unnecessary to consider whether this may have affected the outcome of the trial.[22] Examples of error that may result in an unfair trial include lack of representation, failure by counsel to follow the defendant’s instructions on fundamental issues such as plea, the giving of evidence and advancing a defence based on the defendant’s version of events and cases where a defendant is deprived of an adequate closing address.[23]
Analysis
[20]R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [77].
[21]Wileyv R above n 18, at [34].
[22]At [37].
[23]At [40] referring to R v Condon, above n 20; Hall v R [2015] NZCA 403, [2018] 2 NZLR 26; and Kaka v R [2015] NZCA 532.
As the Supreme Court stated in Condon in relation to unrepresented litigants:[24]
[82] The [appeal] Court should examine the manner in which the Judge presided over the trial, especially whether the Judge clearly explained the Court procedures to the accused and thereby minimised the disadvantage of being unfamiliar with the trial process and with the rules of evidence. …
[24]R v Condon , above n 20.
Judge Tompkins gave the following explanation to Mr Birchall about his right to give evidence:
MR BIRCHALL:
So you say I can give my side of the story now if I wanted?
THE COURT:
You are not obliged to give evidence and the police have to prove the case against you beyond a reasonable doubt on the basis of the evidence they put before the Court, but if you elect to give evidence, you can choose to do so. You will go into the witness box, be sworn, give your evidence and then the police prosecutor will have an opportunity to ask questions of you in cross‑examination.
MR BIRCHALL:
Okay, I'm happy to give evidence, I don’t have an issue. I’m just not sure if there’s – I probably already got most of it out. What would you advise me?
THE COURT:
I’m not going to – certainly not going to give you legal advice Mr Birchall. It’s for you to elect.
MR BIRCHALL:
So…
THE COURT:
But I’ll tell you what I’ll do Mr Birchall, I’ll take the afternoon adjournment. You can think about it over the afternoon adjournment and then when you come back you can confirm the election or otherwise, but I reiterate you are under no obligation to give evidence. You’re quite entitled not to do so and no inference against you will be drawn, should you choose not to give evidence.
MR BIRCHALL:
Okay, I’ll skip it then.
THE COURT:
All right. So that’s a formal election you do not wish to give evidence?
MR BIRCHALL:
I don’t think there’s anything more I can say frankly.
DEFENCE ELECTS NOT TO CALL EVIDENCE
We agree with Cooke J that the trial was unfair. The explanation regarding the right to give evidence was inadequate. As Mr Birchall was unrepresented, it was necessary for the trial Judge to clearly explain to Mr Birchall that his questions in cross-examination were not evidence and that if he did not give evidence, the assessment of the facts would depend the prosecution evidence. Moreover, given Mr Birchall’s comments, it should have been obvious that he did not understand the importance of giving evidence. Crucially then, there was no direct evidence on two key ingredients of the defence of moveable property — peaceable possession and claim of right. As a result, the trial Judge did not have Mr Birchall’s account, in an evidential sense, in relation to those matters.
However, we are unable to agree with Cooke J that there was no miscarriage of justice. As noted, the right to a fair trial is an absolute right.[25] Trial counsel failure to follow instructions in relation to the election to give evidence is recognised as a fundamental error.[26] This reflects the underlying importance of that election. In any event, as Mr Birchall clearly did not appreciate the significance of not giving evidence, his election was inherently flawed. Thus, the trial process went wrong from that point and was unfair to him.
[25]Condon v R, above n 20, at [66]–[77].
[26]Hall v R, above n 23, at [65].
As the trial was unfair in terms s 232(4)(b), it is unnecessary to assess whether the trial error gave rise to a real risk that the outcome of the trial was affected as required for the purposes of s 232(4)(a).
For completeness, we acknowledge Ms Wong’s argument that the trial Judge appears to have relied on Mr Birchall’s account via the record of the cross‑examination and that Cooke J’s reference to an “unfair approach” was not a conclusion that the trial was unfair in the sense used in s 232(4)(b).[27] But we do not consider the trial Judge’s approach remedied the unfairness and to the extent that Cooke J was not referring to unfairness in the sense used in s 232(4)(b),[28] we disagree with him for the reasons already stated.
[27]High Court decision, above n 2, at [35].
[28]Which seems unlikely as he states at [35], “following the approach in Condon, an unfair approach was adopted to the hearing”.
Overall, therefore, we are satisfied that the trial miscarried and the conviction should be quashed.
Result
The application for leave to appeal is granted.
The appeal is allowed.
The conviction for assault is set aside.
A retrial is ordered.
Solicitors:
Crown Law Office, Wellington for Respondent
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