Buis v Police - [2014] NZHC 2733

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000018 [2014] NZHC 2733

BETWEEN
SEAN JONATHON BUIS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 24 September 2014

Appearances:

J Turner for Appellant
R D Smith for Respondent

Judgment:

26 September 2014

JUDGMENT OF GENDALL J

Introduction

[1] The appellant Mr Buis has brought an appeal against conviction out of time.

[1] Mr Buis was convicted on one charge of burglary by Judge Smith in the Dunedin District Court on 1 May 2013 after a defended hearing.1 Judge Thorburn then sentenced Mr Buis to 175 hours of community work and reparation of $50 on 6
August 2013.

[2] Mr Buis’ notice of appeal here is dated 17 June 2014 and is some nine months out of time. Appended to that notice is a letter from his counsel (who was also his counsel at the time of the defended hearing). The letter states:

Mr Buis did not appreciate that a time limit applied to the filing of an appeal despite being clearly advised of this and although he understand (sic) that an appeal was recommended by Counsel, he did not advise Counsel of his desire to appeal until recently. Given his young age and limited engagement with the justice system we request the appeal be granted.

1 Crimes Act 1961, s 231(1)(a). Maximum penalty of 10 years’ imprisonment.

BUIS v NEW ZEALAND POLICE [2014] NZHC 2733 [26 September 2014]

[3] Essentially, Mr Buis seeks leave to appeal this conviction and sentence out of time on the ground that the conviction was based upon unreliable identification evidence, and therefore resulted in a miscarriage of justice.

Background

[4] On 9 November 2012, Mr Buis and his associate Mr Batchelor were alleged to have entered a building in Elgin Road without authority and with intent to commit a crime in that building.

[5] The complainant, Mr Roy Young, at this Elgin Road property had stored two rims or mag tyres and a battery that were situated by a doorway. Mr Buis and Mr Batchelor were alleged to have gone to the property into an enclosed yard and removed the battery with rope handles. Mr Roy Young, with his son Mr Sean Young returned to the property. Mr Sean Young, saw two persons running out of the property, one carrying the car battery to a car parked outside the property.

[6] Mr Sean Young saw the person throw the battery into the boot of the car. The two of them then got into the car and drove off. Mr Sean Young said he recognised one of those persons as Mr Sean Buis. He called out the name “Sean” at the man who was throwing the battery into the boot of the car, and that person turned and looked briefly at him before getting into the car and driving off.

Judge Smith’s decision

[7] Judge Smith heard evidence from four witnesses, namely: (a) Mr Sean Young;
(b) Mr Roy Young, Mr Sean Young’s father;

(c) Constable Harwood,…

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 Buis v Police

Details

AGLC: Buis v Police [2014] NZHC 2733
Case: [2014] NZHC 2733
Decision Date: 26 September 2014

CaseChat Overview and Summary

Sean Buis appealed against his conviction and sentence for burglary, arguing that the conviction was based on unreliable identification evidence. The appeal was filed nine months out of time. The court had to decide whether to grant leave for the appeal to proceed out of time, and if the identification evidence was reliable. The court considered the principles governing the extension of time for appeals, which include whether there were special circumstances excusing the delay, whether the delay caused prejudice to the respondent, and whether the appeal had sufficient merit. The court found that Buis did not provide a satisfactory explanation for the delay, and the appeal did not have sufficient merit because the identification evidence was reliable. The court concluded that Sean Young's recognition of Buis was credible, and there was no miscarriage of justice. Therefore, the application for leave to appeal out of time was dismissed.

Orders