Brown v Police - [2018] NZHC 1083

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-000073

[2018] NZHC 1083

BETWEEN
COLIN WILLIAM BROWN

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 May 2018

Appearances:

C W Brown in person, Applicant J J Rhodes for Respondent

Judgment:

17 May 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 17 May 2018 at 11.00am Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Parties/Solicitors:
C W Brown, Auckland
Kayes Fletcher Walker, Manukau

BROWN v NEW ZEALAND POLICE [2018] NZHC 1083 [17 May 2018]

Introduction

[1] Colin Brown, who is self-represented, applies for leave to appeal against his convictions, on three charges of assault. The complainant, Raewyn Watkins, was Mr Brown’s partner at the time. The Police had been called to an incident at Mr Brown’s residence. Mr Brown was arrested, subsequently tried and convicted.

[2] The highly unusual aspect of Mr Brown’s appeal is that Mr Brown was arrested on 10 December 1997, his trial took place in the District Court at Otahuhu on 26 June 1998 and Mr Brown was sentenced in the District Court on 7 September 1998. On each charge Mr Brown was ordered to pay a fine of $150 and Court costs of $120.

[3] The grounds Mr Brown advances for his appeal are that he was denied the right to a fair trial through the non-disclosure by police of documents later obtained by a request under the Official Information Act 1982 and that those documents cast doubt on the credibility of the complainant, Ms Watkins, and on the credibility of a police sergeant who prepared the Police Summary of Facts before trial. Mr Brown also says the trial judge made a mistake over who owned the premises where the incident happened and he says that the fact that the police sergeant who arrested him was later alleged to have been involved with illegal drugs casts doubt on the safety of Mr Brown’s conviction.

[4] Mr Brown has applied for an extension of time to bring his appeal. That application is before this Court.

[5]The police oppose Mr Brown’s application. They say:

(a)The delay is extraordinary;

(b)There has been no adequate explanation for the delay;

(c)The appeal lacks merit;

(d)The police are prejudiced by the delay, not least because the police file has been destroyed in accordance with standard document management protocols and they have been unable to obtain the original court file.

[6] Following the hearing before me on 15 May 2018, I dismissed Mr Brown appeal and said my reasons would follow in writing.

Applicable law and procedure

[7] The proceeding that led to Mr Brown’s convictions began prior to the enactment of the Criminal Procedure Act 2011 and in accordance with s 397(2) of that Act Mr Brown’s appeal must be heard and determined in accordance with the Summary Proceedings Act 1957 as if it is still in force.

[8] Under s 115 of…

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 [2018] NZHC 1083
Case: [2018] NZHC 1083
Decision Date: 17 May 2018

CaseChat Overview and Summary

Colin Brown applied for leave to appeal against his convictions on three charges of assault. The police opposed his application, arguing that the delay in bringing the appeal was extraordinary, there was no adequate explanation for the delay, the appeal lacked merit, and the police would be prejudiced by the delay. The High Court heard the matter on 15 May 2018 and subsequently dismissed Mr Brown's application, providing written reasons on 17 May 2018. The court found that Mr Brown had not provided an adequate explanation for the 20-year delay between his sentencing and his appeal. The court also found that the substantive merits of Mr Brown's appeal were weak, and there would be significant prejudice to the police if they had to defend an appeal brought almost 20 years after sentence was passed. The court concluded that the wider interests of society in the finality of decisions outweighed Mr Brown's interest in having his convictions reviewed. The court dismissed Mr Brown's application for an extension of time.

Van Bohemen J held that Mr Brown had not provided an adequate explanation for the 20-year delay between his sentencing and his appeal. The court found that the reasons Mr Brown gave for the delay, such as maintaining contact with the complainant and becoming aware of allegations of impropriety against the arresting officer, did not adequately explain the significant delay. The court also found that the substantive merits of Mr Brown's appeal were weak, as he had not established that the appeal had overwhelming merit. The court agreed with the police that there would be significant prejudice to their ability to defend the appeal, as the police file had been destroyed and the District Court file was unobtainable. The court also found that the wider interests of society in the finality of decisions outweighed Mr Brown's interest in having his convictions reviewed. The court declined Mr Brown's application for an extension of time.

Orders