Brown v Police - [2016] NZHC 374

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000382 [2016] NZHC 374

BETWEEN
RUKA BROWN

Appellant

AND

NZ POLICE Respondent

Hearing: 7 March 2016

Appearances:

Appellant in person
H Clark for Respondent

Judgment:

7 March 2016

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 7 March 2016 at 4.30pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar

Date:……………………………….

Solicitors/counsel:
Crown Solicitors, Auckland

BROWN v NZ POLICE [2016] NZHC 374 [7 March 2016]

Introduction

[1] On 9 February 2015 Mr Brown pleaded guilty to one charge of indecent assault. On 11 February 2015 he was convicted and sentenced to six months’ imprisonment by Judge R Collins in the Auckland District Court.1

[2] Mr Brown appealed his conviction and sentence.

[3] The notice of appeal is dated 28 October 2015. It was only received by this

Court on 26 November 2015. It is significantly out of time.

[4] Pursuant to r 8.5 of the Criminal Procedure Rules 2012, a notice given out of time is to be treated as an application for an extension of time. The Court has the power to extend the time for filing under r 1.7.

[5] Ms Clark for the respondent accepted that there is no prejudice to the respondent. She was neutral on the application for an extension of time.

[6] In R v Slavich,2 the Court of Appeal stated that there are two questions that fall for consideration when an appeal is filed out of time:

(a) why was the appeal filed late?

(b) what, if any, merit does the prospective appeal appear to have?

[7] No reason has been advanced for the late filing. I proceed to consider the merit of the prospective appeal.

Grounds of Appeal

[8] When the appeal was called, Mr Brown withdrew his appeal against sentence. It became clear that his concern is that the conviction may prompt the Department of Corrections into applying for a further extended supervision order against him. He
became the subject of such an order in December 2005. It expired in December

1 Police v Brown [2015] NZDC 3654.
2 R v Slavich [2008] NZCA 116 at [14].

2015. Mr Brown clearly resented the order. He feels that he no longer poses a threat to the community and that no fresh order should be sought or made. He fears that the conviction may trigger a fresh application.

[9] Insofar as can be gleaned from the documents Mr Brown has filed, the grounds of appeal appear to be as follows:

(a) There was no inappropriate touching, no violence, no DNA and no medical evidence to support the conviction.

(b) That the elements of the offence of indecent assault were not met.

(c) That Judge Collins erred in assessing the evidence to such an extent that a miscarriage of justice occurred.

Summary of Facts

[10] The summary of facts to which Mr Brown pleaded guilty records as follows:

(a) The victim was a tourist in New Zealand. She…

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 Brown v Police

Details

AGLC: Brown v Police [2016] NZHC 374
Case: [2016] NZHC 374
Decision Date: 7 March 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Ruka Brown, the appellant, sought to appeal his conviction and sentence for indecent assault, which was imposed by the Auckland District Court on 11 February 2015. The appeal was lodged significantly out of time, prompting the Court to treat it as an application for an extension of time under the Criminal Procedure Rules 2012. The key legal issues involved determining whether the appeal was filed late and, if so, whether there was sufficient merit to warrant an extension of time. The respondent did not object to the extension, provided there was no prejudice. The Court considered the merit of the prospective appeal, focusing on whether there was a miscarriage of justice.

The court found that the appellant's grounds for appeal were insufficient to establish a miscarriage of justice. The appellant argued that there was no inappropriate touching, no violence, no DNA or medical evidence to support the conviction, and that the elements of the offence were not met. Additionally, the appellant claimed that the judge had erred in assessing the evidence, resulting in a miscarriage of justice. However, the court noted that the appellant had pleaded guilty based on a summary of facts, and the judge had not assessed the evidence. The court also found that the appellant understood the charge and the nature of the offence, as he was fully advised and represented himself during the plea. Furthermore, the court determined that the appellant's actions constituted an assault, as there was an intentional application of force and a threat to apply force. Consequently, the court held that there was no manifest injustice and that the proposed appeal had no prospect of success.

Ultimately, the court declined to grant leave to the appellant to bring his appeal out of time, as the appeal would fail. The appellant's concerns about a potential extended supervision order were noted, but the court stated that if such an application were made, it would be subject to the provisions of the Sentencing Act 2002.

Orders