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Birchall v Police

Birchall v Police

Case [2020] NZHC 2378 11 September 2020

Appeal

Jurisdiction

Defence of Movable Property

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-485-000062

[2020] NZHC 2378

PHILLIP BRIAN BIRCHALL

v

NEW ZEALAND POLICE

Hearing: 8 September 2020

Appearances:

T Luders for the Appellant

R H De Silva for the Respondent

Judgment:

11 September 2020

JUDGMENT OF COOKE J

Table of Contents

Relevant facts[3]

Events at the trial[15]

Approach to appeal[17]

Error in the conduct of the trial[23]

Opportunity to provide submissions[24]

Self-represented defendants[31]

Reconsideration of conviction[36]

Was there a miscarriage of justice?[39]

Section 53 – the defence of movable property[41]

Claim of right[44]

Peaceable possession[49]

Result[60]

BIRCHALL v NEW ZEALAND POLICE [2020] NZHC 2378 [11 September 2020]

[1] Mr Birchall appeals from the decision of the District Court convicting him of one charge of common assault following an altercation with his mechanic, the complainant.1 He was found guilty after representing himself at a Judge alone trial on 13 July 2020.2 He was sentenced to a $750 fine and ordered to pay court costs of $130 and an emotional harm repayment of $500.

[2] Mr Birchall appeals on the basis that 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 the District Court Judge did not allow him the opportunity to present any submissions. On appeal he says his conviction should be overturned.

Relevant facts

[3] There is no dispute about the Judge’s factual findings, and I set the relevant facts out largely as recorded by the District Court Judge.

[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.

1 Summary Offences Act 1981, s 9, maximum penalty six months’ imprisonment or $4,000 fine.
2 New Zealand Police v Birchall [2020] NZDC 15990.

[7] The complainant said that Mr…

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] NZHC 2378
Case: [2020] NZHC 2378
Decision Date: 11 September 2020

CaseChat Overview and Summary

Phillip Brian Birchall appeals his conviction for common assault against the New Zealand Police. Birchall was found guilty by a Judge alone after a trial on 13 July 2020, and was sentenced to a $750 fine, $130 in court costs, and an emotional harm repayment of $500. Birchall submits that the District Court Judge erred in not allowing him to present a defence under s 53 of the Crimes Act 1961 and that this resulted in a miscarriage of justice. The appeal was heard on 8 September 2020 and Cooke J gave his judgment on 11 September 2020. Cooke J held that while there were errors in the conduct of the trial, they did not result in a miscarriage of justice. The appeal was dismissed.

The appeal court found that the trial judge erred in not asking Birchall if he wished to make submissions. The Court held that it is important to appreciate that s 105 of the Criminal Procedure Act does not provide a complete code on the question of submissions. Secondly, and in any event, this section contemplates the Court making a decision on whether submissions will be permitted. The responsibility for ensuring a fair trial remains with the Judge. The Court held that a Judge who fails to give a defendant an opportunity to explain why they should not be convicted cannot point to the terms of s 105 to justify that outcome.

The appeal court found that there was a further dimension to the case because Birchall was self-represented. The Court held that the District Court Judge should have explained the different roles that Birchall might exercise during the trial. Birchall was exercising three roles: he was exercising his right to cross-examine the prosecution witnesses; he could give evidence himself in his defence; and he could exercise a right to present submissions to the Court if allowed to do so. The separation between those three roles would not be obvious to someone without familiarity with trial processes. The Court held that it was apparent that Birchall was not grasping the different functions well, and the problem is that it became apparent after the Judge delivered his reasons for the conviction that Birchall did want to raise a defence. The Court held that the District Court Judge should have immediately recalled his decision to consider the matter that was not addressed.

The appeal court held that there was no miscarriage of justice. The Court held that the fact that there has been an irregularity in the conduct of the trial does not mean that the appeal should be allowed. The Court held that the ultimate question is whether a defence under s 53 was made out on the evidence. The Court held that it was in just as good a position as the trial Judge in assessing the potential defence. The ultimate question is whether, on the facts as proved at trial, the prosecution established the charges beyond reasonable doubt notwithstanding the defence. The Court held that Birchall was not in peaceable possession of his vehicle before pushing the complainant away from it. It follows there has been no miscarriage of justice notwithstanding the irregularities at trial.

Orders