Burchell v Police

[2012] NZHC 339

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-160 [2012] NZHC 339

BETWEEN  LLEWELLYN WILLIAM BURCHELL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 March 2012

Counsel:         No appearance by or on behalf of Appellant

NMH Whittington for Respondent

Judgment:      5 March 2012

JUDGMENT OF BREWER J

SOLICITORS

Meredith Connell (Auckland) for Respondent

(Copy to Appellant in person)

BURCHELL V POLICE HC AK CRI-2011-404-160 [5 March 2012]

[1]      Mr Burchell has been pursuing an appeal against a reserved judgment of

Judge  DJ  McNaughton  in  the  District  Court  at  North  Shore  delivered  on

15 November 2010.

[2]      The appeal has been the subject of four callovers before me as I sought to put Mr Burchell into a position where he could advance his appeal.   To that end, and after a number of requests to the District Court at North Shore, full transcripts of proceedings before Judge DJ McNaughton were eventually obtained.

[3]      The final callover was on 1 December 2011.  At that time I discussed with Mr Burchell what he needed to do in order to be ready to present his appeal today. Mr Burchell  did  have  pre-hearing  matters  which  he  wanted  me  to  address.    I recorded in my Minute as follows:[1]

[1] Burchell v Police HC Auckland CRI-2011-404-160, 1 December 2011 (Minute).

[4]       Having said that, I direct Mr Burchell to file and serve his written description  of  the  orders that  he  wishes  this  Court  to  make  before  the hearing of the appeal on 5 March 2012.  He is to file his written description no later than 14 December 2011.  I note that Mr Burchell has said that he can provide it much earlier, but I do not want to put him under any pressure. However, if he is able to do it earlier, so much the better, but the date by which it must be done is 14 December 2011.

I then went on to record the particular areas that Mr Burchell had identified and which would need to be included in his written description.

[4]      Mr Burchell was in Court at the time that I made that order and it was made after some discussion with him.   He was, therefore, aware that the hearing of his appeal would take place in this Court at 10:00 am today.  He was also aware of the need to provide the Court with written descriptions of his pre-hearing matters no later than 14 December 2011.

[5]      I  saw  from  the  file  this  morning  that  no  matters  had  been  filed  by Mr Burchell at all.  When the case was called at 10:00 am he did not appear.  In the past, Mr Burchell had told me that he takes the bus to Court and had been concerned that a minor lateness might see adverse decisions against him.  Accordingly, I stood

the case down to 11:00 am to cater for the possibility that he was running late.

[6]      I  am  advised  in  the  meantime  that  a  member  of  the  registry  staff  has contacted Mr Burchell by telephone.  Mr Burchell told the staff member that he had no notice of the hearing and would not come today to argue it.  He was offered the chance of coming in later today and refused.

[7]      Mr Burchell, as I have said, was in Court when the fixture date was allocated. In addition, the Court file shows that he was posted a copy of my Callover Minute in the usual way.  In addition to that, the Court file shows that the registry couriered a further copy of my Callover Minute to Mr Burchell together with a transcript of the callover of 1 December 2011 on 12 December 2011.  The tracking details supplied by the  courier  firm,  and  which  are  on  the  file,  show  that  the  documents  were delivered to Mr Burchell’s address on the day.

[8]      Mr Burchell has an obligation to pursue his appeal in the same way as any other appellant.  It is clear to me that he has decided not to proceed with the appeal today, although he would in all likelihood deny that.

[9]      I have looked at what I know of the merits of the appeal in preparing for today’s  hearing.     Mr  Burchell’s  main  complaint  has  been  that  there  was  a miscarriage of justice due to witnesses not giving evidence or malfeasance on the part of the prosecution.  He would have faced an extremely difficult task to provide a basis for such grounds.   In all of the circumstances I see no point in carrying this

appeal further and I dismiss it for want of prosecution.

Brewer J