Bray v Police

[2012] NZHC 2722

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-65 [2012] NZHC 2722

PAUL EDWIN BRAY

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 October 2012

Counsel:         V C Nisbet for Appellant

M J Ferrier for Respondent

Judgment:      23 October 2012

JUDGMENT OF SIMON FRANCE J

Introduction

[1]      Mr Bray appeals his conviction for assaulting with intent to injure.[1]     The conviction  was  entered  on  15 September 2009;  an  appeal  was  not  filed  until

[1] New Zealand Police v Bray DC Wellington CRI 2009-085-003496, 15 September 2009, Judge Harrop.

17 July 2012.  Leave to appeal out of time is sought, and an affidavit explaining the

delay has been filed.

Facts

[2]      The  victim  in  the  matter  was  extremely  drunk.    He  had  travelled  from Wellington to Johnsonville in a taxi.  On arriving at a Johnsonville Service Station, the victim immediately got out of the taxi and got into Mr Bray’s car.

[3]      Mr Bray was reversing the vehicle slowly at the time.  He was shocked and alarmed at the victim’s actions.  He yelled several times for the man to get out of his car, all to no avail.  Mr Bray then chose the alternative open to him – he got out of the car.  Unfortunately it was not securely parked and it rolled on with the victim still in it.  It collided with the wall of an adjacent shop, thereby damaging it.

[4]      Mr Bray became enraged.  He pulled the victim out of the car.  There then appears to have been somewhat of a running scuffle/assault.  Independent witnesses say they saw Mr Bray kick the victim on occasions.  It seems though that the victim also engaged in the fighting, and on occasions when it had lulled, seemed to invigorate it.   Mr Bray’s intention was to keep the victim there until the police arrived. The charge of assault indicates no significant injury was caused.

[5]      The defences were a lack of intention to injure, and self-defence.   As is obvious given there is an appeal, the defences failed.

The aftermath

[6]      Mr Bray was unhappy with the performance of his counsel.  He considered he had not kept him informed, he had failed to progress the appearance of two witnesses   Mr Bray  wished   to   be   called,   and   he   had   performed   poorly  in cross-examination.

[7]      He complained to the Law Society which upheld his complaint.  In terms of the conviction, relevant findings were that:

(a)      there was a clear failure to follow instructions, in particular there was no  follow  up  of  the  service  [station]  attendant  and  taxi  driver witnesses as requested by Mr Bray;

(b)there was a failure to act competently; the file provided was very sparse and contained no file notes or records of what occurred.

The appeal

[8]      The appeal is advanced on the basis that Mr Bray has not had a fair trial due to the errors of counsel.  In terms of the witnesses, a statement of the service station attendant had  been  obtained prior to trial by Mr Bray and  provided to his trial counsel.  The other witness is the taxi driver who delivered the victim to the service station.  He had been spoken to by the police but no statement taken.

[9]      Mr Nisbet has located him and an affidavit has been filed.   Obviously it is now three years since the incident but the taxi driver’s memory is quite vivid because of the erratic conduct of the victim. The witness says that when they were driving on the motorway, the victim kept trying to get out of the cab whilst it was moving. When they arrived at the service station, he got out without paying, and seemed unwell.  The driver thought he was on drugs, did not know where he was going and seemed to have lost control.

[10]     As far as the fight the taxi driver says they were punching each other.  At times the victim kept coming at Mr Bray.

[11]     I accept the Crown’s submission that the possible evidence of the service station attendant is of doubtful probative value.  He observed only the latter part of the dispute, but I would not totally discount its ability to colour the jury’s assessment of the earlier part. This is especially so when the victim has little memory of it.

[12]     The failure to call the taxi driver is more significant.   His evidence could have been of assistance in a case where the events are confused.  Also, his insight into the condition of the victim is pertinent to self-defence.  I accept that the main Crown witness, an independent observer from  a nearby balcony, provided good evidence but of course there was no countering evidence for the jury to consider.

[13]     In any event there are unchallenged findings that trial counsel did not follow instructions, and call these witnesses.   That cannot lightly be dismissed unless a court is confident the evidence would not have assisted.  Also, counsel’s preparation was sparse, and the transcript does not fill me with confidence about counsel’s performance.

[14]     In the ordinary course of events I consider that the appeal should plainly be allowed.  However, there is the question of the delay, a concern that is exacerbated by likelihood that a retrial may not occur.  One hesitates to give leave to extend time to appeal if the appellant is going to benefit from his own delay.

[15]     Following the hearing  I called for further evidence from Mr Bray which focussed on the delay and the reasons for it.  I was concerned that at the outset of the Law Society process, and at its conclusion, the Society had expressly told Mr Bray that he needed to take other steps to challenge his conviction.   The Law Society decision was released in March 2011, and it was still 16 months before an appeal was filed.

[16]     Underlying what seems to be inexplicable delay is that Mr Bray has for some time suffered from depression.  It has had a disabling effect on him.  That does not mean he cannot act, as indeed the Law Society complaint shows.  But I accept it is a difficult condition to deal with.  It is also to be recalled that Mr Bray’s trial counsel was not providing appropriate assistance.

[17]     Counsel   for   the   respondent   submits   the   delay   remains   inadequately explained.  There are periods where nothing has happened, and overall the delay is too long.

[18]     My summary of it is that Mr Bray has continued to pursue his rights.  I see similarities to R v Knight in that it is not a case of sitting on his hands.[2]    I accept some of the energy could have been better directed, and some steps should have been done much sooner, but he has been trying.

[2] R v Knight CA210/97, 12 November 1997.

[19]     A period of the delay between the release of the Law Society decision and the filing of the appeal is due to a breakdown in contact between Mr Nisbet and him. Mr Nisbet was contacted shortly after the Law Society decision.  At the hearing he tended to shoulder responsibility for the lack of progress.  I am not sure that is fair but the point is that following the Law Society decision Mr Bray did get on with it, and start the ball rolling.

[20]     The reality is that the “system” let Mr Bray down at his first trial in that he was not afforded the level of defence to which he is entitled.  There is an explanation for the delay, and in general terms a pursuit of his grievance.  Leave to appeal out of time is, therefore, appropriate.

Decision

[21]     Leave to appeal out of time is granted.

[22]     The appeal is allowed and the conviction quashed.

[23]     I recognise retrial is ordinarily a matter for the prosecution.  However, I am mindful that the only sentence imposed was to come up for sentence in 12 months if called upon, which he was not.  Given that response by the trial Judge, I consider on

this rare occasion it is not appropriate to order a retrial.

Simon France J

Solicitors:

V C Nisbet, Barrister & Solicitor, Wellington, email:  [email protected]

M J Ferrier, Luke Cunningham & Clere, Wellington, email:  [email protected]