Burchell v Police HC Auckland CRI 2009-404-421

[2010] NZHC 1245

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-421

BETWEEN  LLEWELL WILLIAM BURCHELL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         17 May 2010

Appearances: L W Burchell in person

J M Jelas for the respondent

Judgment:      19 July 2010 at 3.30 p.m.

JUDGMENT OF POTTER J

In accordance with r 11.5 High Court Rules

I direct the Registrar to endorse this judgment with a delivery time of 3.30 p.m. on 19 July 2010.

Solicitors:           Crown Solicitor, P O Box 2213, Auckland 1140

Copy to:            L W Burchell, 66 Gulf View Road, Murrays Bay, North Shore City 0630

BURCHELL V NEW ZEALAND POLICE HC AK CRI-2009-404-421  19 July 2010

Introduction

[1]      The appellant Mr Burchell was convicted after a defended hearing in the District Court at North Shore[1]  on 2 November 2009 of assaulting a Police Officer, Constable Tyne Daniels, in the execution of his duty on 15 September 2007.  He was sentenced by Judge J R Callander on 5 November 2009 to seventy five hours of community work.

[1] R v Burchell DC North Shore CRI-2008-044-1101322.

[2]      Mr Burchell appeals against conviction.  The grounds of appeal stated in his notice of appeal dated 11 November 2009 are:

a)        Failure of the Police to provide full disclosure;

b)A document produced by the Police at the Court hearing which was not made available to Mr Burchell until after the hearing;

c)        Police have failed to produce the video tapes of the CCTV footage in response to requests by Mr Burchell for disclosure;

d)The appellant wants to call witnesses to prove that Constable Daniels lied at the District Court hearing.

[3]      Mr Burchell filed submissions in support of his appeal.  They were sent by email to the Court at 1.18 p.m. on the day of the appeal hearing, 17 May 2010.  They appear to raise additional grounds of appeal which were addressed by Mr Burchell in oral submissions:

a)        He was denied a lawyer for the District Court hearing;

b)        He was denied the right to give evidence at the hearing;

c)       He  was  wrongly  detained  in  custody  before  this  matter  came  to hearing and the eventual sentence of seventy five hours community service represents a double punishment.

District Court judgment

[4]      The judgment of Judge Callander delivered on 2 November 2009 following the hearing, notes that there are two essential elements the prosecution must establish beyond reasonable doubt before the charge of assaulting Constable Daniels while the officer was acting in the execution of his duty, could be proved.  Firstly that there was an assault, and secondly that the constable was acting as a constable in the execution of his duty.

[5]      The Judge summarised the Police case: that Mr Burchell, while in the custody of the Police and being moved from a Police cell to a Police vehicle, with a view to transportation to the Court, became agitated, became physical, and that he then kneed the constable between the legs causing the constable to fall to the ground in

pain.[2]

[2] At [3].

[6]      The Judge recorded that he had heard from three Police Officers who were all the prosecution witnesses, they being Sergeant Mowat, Constable Jonathan Pitcon and Constable Daniels.  He noted that Mr Burchell had elected not give evidence. He recorded the right of any defendant to elect not to give evidence and that no adverse inference should be levelled at Mr Burchell as a consequence of him not

testifying.[3]

[3] At [4].

[7]      The Judge then summarised the evidence given by the three Police Officers. [8]      Mr Burchell was not legally represented at the hearing and Mr L Burns was

appointed as amicus curiae.  The Judge recorded:[4]

[4] At [10].

The nature of the cross-examination of the prosecution witnesses by Mr Burns was really directed to suggest that in fact Constable Daniels was not kicked in the way that is being alleged, that in fact he was worried about the kick that he had applied to the stomach of the defendant and not vice versa, that he was troubled at the fact that there might well have been a record of the incident recorded on a police closed circuit television.

[9]      The Judge said[5]  that it was not certain the closed circuit television camera would have recorded this incident but he accepted that by now, with the passage of time, there was no record of it in any event.  He continued:

[5] At [11].

The  point  really is  simply this,  that  the  defence  case  is that  the  police constable has in fact concocted the story of being kneed in the groin as an answer to his own assault on Mr Burchell.  It is, as Mr Burns says, a question of credibility even though the defendant has remained silent as is his right.  I have to form a judgment as to the reliability, the accuracy and the honesty of the prosecution witnesses before I can effectively take that testimony into account in this case.

[10]     The Judge said that, having had the opportunity to observe and listen to what each of the prosecution witnesses said, he could not reach any view that they were speaking on oath in any way other than as honest witnesses.  He did not consider them unreliable witnesses and he did not believe there was any attempt by the Police to concoct this case against the defendant, Mr Burchell.   He said:[6]  “I am quite satisfied it really happened as Constable Daniels tells me it happened.”

[6] At [12].

[11]     He concluded[7] that he found the charge clearly proved against this defendant beyond reasonable doubt.

[7] At [13].

Application to adduce further evidence

[12]     Mr Burchell notified the Criminal Registry that he wished to apply to adduce further evidence on appeal.  It was made abundantly clear to him in the minutes of Stevens J dated 15 March 2010 at [8], Andrews J dated 12 April 2010 at [11] and

[12] and my minute of 28 April 2010 at [6]b) that if Mr Burchell wished to pursue an application to call further evidence on appeal then he must file and serve a formal application.  He did not do so.

[13]     He advised  at the appeal hearing that the  further evidence he wished  to adduce on appeal was the Tactical Options report, the Use of Force report (he says these are two separate reports) and further evidence from Constable Daniels.

[14]     Constable  Daniels  gave  evidence  at  the  District  Court  hearing.     An application to call further evidence on appeal would not succeed.   The Tactical Options reports disclosed by the Police raise no new matters, as I discuss below. There appear to be no Use of Force reports and the reason for this has been given by the Crown in its memorandum of 11 May 2010.   The application is misconceived and must fail.

Legal representation

[15]     Mr Burchell was declined legal aid by the Legal Services Agency in relation to this matter.   Mr Burns was appointed by the District Court as amicus curiae in May 2009.  This followed several adjournments, including on 20 April 2009 when the  Court  record  states  “defendant  wishes  to  engage  counsel  for  hearing”. Obviously, when the matter came before the Court in May and the hearing date of 2

November 2009 was fixed, Mr Burchell did not have counsel appointed to represent him, and the Court appointed Mr Burns.

[16]     Although Mr Burchell protested (recorded at page 6 of the transcript of the proceeding) that he would not rely on the lawyer the Court had appointed, after the Court adjourned at the request of Mr Burns so he could have a few minutes to discuss matters with Mr Burchell, the Court resumed and the case proceeded with the calling of the three Police witnesses.  Each of the witnesses was extensively cross- examined  by Mr Burns  on  behalf  of  Mr  Burchell.    Following the  close  of  the prosecution case, as the transcript records, the defence elected not to call evidence.

Brief  submissions  followed,  with  Mr  Burns  appropriately acknowledging  to  the

Court that this was purely a factual issue and that obviously credibility was in issue.

[17]     Mr Burchell’s complaint on appeal is that he was denied a lawyer.  He said that the amicus would not help him because he was not prepared to accuse the Police of telling lies.

[18]     Three things are clear.   Mr Burchell had been declined legal aid for this matter.    He had  not  himself  arranged  legal  representation  for  the hearing on  2

November 2009.  The Court, to ensure a fair hearing, appointed Mr Burns as amicus. It is also clear from the transcript that Mr Burns took an active role at the hearing and after discussion with Mr Burchell, effectively acted as his counsel, pursuing extensive cross-examination of each of the prosecution witnesses.

[19]     There is no basis for Mr Burchell’s contention that he was denied a lawyer. He was declined legal aid.  I have had inquiries made of the Legal Services Agency which reveal that this was only after Mr Burchell had proved unable to work with three separate assigned counsel.   He did not himself arrange legal representation. But because of the intervention of the Court to appoint an amicus he was in fact ably and fairly represented at the District Court hearing.

Appellant denied the right to give evidence at the District Court hearing

[20]     There is no evidence whatsoever to support this contention by Mr Burchell. As   I have set out above at [6], the transcript of the hearing records the defence election not to give evidence, followed by the Judge specifically reminding himself that the election so exercised carried no adverse inference for the defendant.   Mr Burchell was present throughout the hearing.

CCTV footage

[21]     There was extensive discussion with Judge Callander followed by evidence about the closed circuit television footage in the immediate vicinity of the incident in

the cell block that gave rise to the charge of assault against Mr Burchell.  The advice the Judge received from the prosecutor was that there had never been any footage in the precise area where the incident took place and if there was any footage in relation to any adjacent or other area, it would have been destroyed after six months and was not available.

[22]     Mr Burchell told the Judge that the tapes would show he did not assault the Police but rather the Police assaulted him which, he said, was the reason why the CCTV footage had not been provided to him.   The Judge said he accepted the assurance of the Police that there was now no record on closed circuit television and that the Court could take the matter no further.

[23]     Notwithstanding the Judge’s ruling, each of the three witnesses was asked in cross-examination by Mr Burns about CCTV footage of the relevant area.

[24]     The general and consistent tenor of the responses from the Police officers was that there were no closed circuit television cameras in the corridor area where the incident took place.  Although there were cameras in each of the five cells which would have covered entry and exit from the cells, they did not show the corridor area where the incident took place.

[25]     In relation to Constable Daniels, Mr Burns not only asked questions in cross- examination about the CCTV footage, but following re-examination by the Police prosecutor Mr Heyns, the Judge permitted Mr Burns to ask further questions of Constable Daniels about the CCTV footage.   Constable Daniels confirmed that he became aware of the CCTV footage at a later stage in the investigation at which point there was no footage to view because it no longer existed.   There were the following questions and answers between Mr Burns and the witness:

Q.You would agree would you not Constable Daniels that it would have been helpful to the Court for that footage to have been before the Court?  Wouldn’t you, as the officer in charge of this file?

A.       Yes.

Q.       But you didn’t think to ask for it?

A.       At the time I didn’t think about it at all, no.

Q.In fact the reason why you didn’t want that footage here is that that footage would have embarrassed the prosecution?   That’s correct isn’t it, Constable Daniels?

A.       No.

[26]     It is abundantly clear that the situation regarding the CCTV footage was fully explored  in  evidence  at  the  District  Court  hearing.    The  Judge  was  entitled  to conclude there was no relevant CCTV footage to disclose and to determine the case on the evidence that was available to him.

[27]     Mr Burchell alleged in submissions that the relevant CCTV footage would have been available to produce in evidence but that on 22 April 2008 when the Police  requested  an  adjournment  which  was  granted  against  his  opposition,  the Police “engineered” the adjournment so the requisite period of six months would elapse to ensure the tapes were destroyed.

[28]     This allegation is unsupported by any evidence.  The only relevant fact is that the prosecution sought an adjournment on 22 April 2008 which was opposed by Mr Burchell but granted by the District Court Judge.  The allegation Mr Burchell now makes that the adjournment was “engineered” for tactical purposes was not raised with Judge Callander.   It was not put to any of the Police witnesses despite the matter  of  the  CCTV  footage  being  extensively  traversed  at  the  hearing  on  2

November  2009  and  Mr Burchell’s  contention  that  the  Police  did  not want  the footage because it would have embarrassed the prosecution, being put directly to Constable Daniels and denied by him.  It appears to be a matter of recent invention by Mr Burchell.

Tactical Options report

[29]     Ms Jelas for the Crown accepted that this report was not on the Police file at the time the file was disclosed to Mr Burchell.   However, it was referred to in evidence at the District Court hearing.   Constable Pitcon was asked in cross- examination by Mr Burns whether a copy of the Tactical Options report was on the Police file and whether the prosecutor could provide it.  Mr Heyns then provided one page of the report and said the rest of the report was in his office.  The report has

subsequently been provided to Mr Burchell.  There appear to be three parts to the report, comprising three pages completed by each of Constables Pitcon and Daniels and a single page completed by Sergeant Mowat in relation to the incident on the morning of 15 September 2007.

[30]     Mr Burchell submitted that he was prejudiced by this report not having been disclosed to him prior to the hearing.

[31]     The details of the incident and the part played by each of the three Police Officers was put to each of the witnesses in considerable detail by Mr Burns in cross-examination.  It was clearly elicited that neither Sergeant Mowat nor Constable Pitcon saw Mr Burchell knee Constable Daniels.   It was put to Constable Daniels that Mr Burchell did not in fact direct a knee to his groin, to which the answer was “Yes he did”.  Further, that it would have been impossible for Mr Burchell to have used his knee against Constable Daniels in the manner the constable claimed, given the position in which Constable Daniels was restraining Mr Burchell.   Constable Daniels denied that proposition.  It was also put to Constable Daniels that he thought there was a high risk that Mr Burchell might assault him.  The constable replied “... there was a risk involved to Police”.   He continued that he considered the risk enough for him to ask Mr Burchell to stand so he could place handcuffs on him.  It was put to the constable that he considered it a high risk as he said in his Tactical Options report (which appears to have been also referred to in cross-examination as the Use of Force report), to which the constable replied that the risk was “... high enough for me to justify placing handcuffs on him for my and the safety of others”.

[32]     As I have observed, in cross-examination there was reference to both a Use of  Force  report  and  a  Tactical  Options  report.     The  Crown  advised  in  its memorandum of 12 April 2010 that the Use of Force report referred to in evidence at the hearing is one and the same document as the Tactical Options report, and that when Sergeant Mowat referred to a Use of Force report in his evidence he was in fact referring to the Tactical Options report but by its former description, Use of Force report.   It does appear from the evidence that both descriptions are used in respect of the reports which were completed by the three officers who gave evidence, and which were referred to in evidence.

[33]     I can see no prejudice to Mr Burchell from the Tactical Options report not having been disclosed to him prior to the hearing.  Sergeant Mowat had at least part of the report at the hearing and the officers were asked about it.   I have read the report.  There is no information in the incident descriptions in the report, that raises any relevant matter that was not put to the officers in cross-examination.

[34]     Mr Burchell’s complaints based on lack of disclosure are without merit.

Floor plan

[35]     Mr Burchell complained that even at the time of the appeal hearing he had not had access to a floor plan of which he requested disclosure from the Police.  He said the request was included in a letter to the Police sent on 20 September and again on 5 October 2009.   He said it was question 20 in that letter.   At the hearing he handed up a copy of the letter in which item 20 had been added in handwriting as follows:

20.      Please Provide the floor plan of where Police claim it took place.

[36]     This request appears to have been added.  It is not included in the copy of the letter provided by the Police, being annexure D to the Crown’s memorandum of 11

May 2010.  Mr Burchell said he thought item 20 was added when he sent the letter to the Privacy Commissioner on 20 September 2009 but it seems the request was not made to the Police.

[37]     Ms Jelas undertook at the appeal hearing to make specific inquiry about the floor plan.  The advice she received from Inspector Les Paterson, confirms that the Police had not previously received a request from Mr Burchell for the floor plan but had a request been received by the Police there would have been no issue about complying.    A  copy of  the  floor  plan  has  now  been  provided  to  Mr  Burchell, attached to the Crown’s memorandum dated 4 June 2010.

[38]     There is no basis for Mr Burchell’s complaint of non-disclosure of the floor plan.

Detention

[39]     Mr Burchell asserted (refer [3]c) above) that he was wrongly detained prior to  the  hearing  in  the  District  Court  on  2  November  2009  and  sentence  on  5

November 2009.

[40]     At  my  request  the  Crown  undertook  inquiries  of  the  Police  and  the Department of Corrections as to Mr Burchell’s custodial status in the relevant period. From the records and information provided (attached to the Crown’s memorandum of 13 July 2010) Ms Jelas has analysed Mr Burchell’s custodial status as set out in the memorandum (which has been provided to Mr Burchell).

[41]     The  analysis  shows  that  Mr  Burchell  was  in  custody  both  as  a  remand prisoner and a sentenced prisoner for periods between 1 October 2007 and 8 July

2009, but he was at large on bail between 22 April 2008 and 23 January 2009.  The periods in custody related to a number of matters including the assault of a Police Officer on 15 September 2007.  The period of incarceration on remand ended on 2

April 2009 when on 3 April 2009 he was sentenced to two years imprisonment on an unrelated charge.  Although there appears to have been an error in the calculation of the release date for that sentence (calculated as 8 July 2009; correct release date 4

July 2009), the error was not in relation to any period as a remand prisoner in relation to the offence of assaulting a Police Officer on 15 September 2007.

[42]     The non-custodial sentence of 75 hours community service imposed by Judge

Callender on 5 November 2009, was properly imposed.

Submissions

[43]     Mr Burchell’s submissions filed only a few hours before the hearing was due to commence are detailed and repetitive.   They include assertions by Mr Burchell which  are  an  attempt  by him  to  give evidence  on  appeal,  although  he had  the opportunity to give evidence at the District Court hearing had he so elected.  They also include assertions about the credibility and honesty of the Police witnesses and of a Police cover-up in relation to material information.

[44]     Mr Burchell’s explanation for the late filing of these submissions was that he did not have the Court file which was delivered to him only on 14 May.  The steps relating to the provision of the Court file to Mr Burchell are as follows:

1.In [7]a) of her minute of 12 April 2010, Andrews J directed “... the Registry is directed to prepare a further set of copies of these documents, which Mr Burchell can uplift from the Criminal Registry Office, Lower Ground Floor, Parliament Street”.

The relevant documents are referred to in that paragraph being: (a)    Transcript of Mr Burchell’s appearance in the North

Shore District Court on 2 November 2009

(b)      Judge J R Callander’s oral judgment dated 2 November

2009; and

(c)      Judge   J   R   Callander’s   sentencing   notes   dated   5

November 2009.

2.A copy of Andrews J’s minute was sent to Mr Burchell by the Criminal Registry (Tay Zaseev) on 13 April 2010 by email and post.

3.        A reminder was sent to Mr Burchell on 10 May 2010.

4.Mr Burchell attended at the Criminal Registry on 13 May 2010 at 12 noon to collect the bundle of documents prepared for him by the Court.   Mr Burchell refused to sign a receipt for the documents.  The Registry therefore declined to hand them over to Mr Burchell.

5.A copy of the file was sent by Sub 60 courier to Mr Burchell on Friday 14 May 2010 to his home address at 66 Gulf View Road, Murrays Bay.

6.Mr Burchell filed submissions on 17 May 2010 at 1.18 p.m. (My minute of 28 April 2010 at [6]a) had directed the submissions to be filed and served no later than 4 p.m. on Friday 30 April 2010 – repeating the direction in the Minute of Andrews J of 12 April 2010 at [3]a)).

7.The Court sent a copy of the submissions to the Crown at 2.05 p.m, i.e. approximately 40 minutes in advance of the scheduled appeal hearing.

[45]     Mr Burchell’s explanation for declining to acknowledge by his signature, receipt of the file and documentation on this and other occasions including when the

Crown sent him material by courier, was that the Police would misuse his signature for alleged nefarious purposes.  I do not accept that explanation.  It is Mr Burchell’s option whether he signs a receipt or not for items handed or delivered to him.  But if he elects not to acknowledge receipt, then he has to accept that he may be unable to take delivery of the material available to him.

[46]     Mr Burchell had ample opportunity to uplift the material from the Court file and to prepare and file his submissions in accordance with the timetable orders.  The late filing of Mr Burchell’s submissions meant the Crown did not have the opportunity to file submissions in reply in advance of the hearing.  Ms Jelas dealt with the matters raised by way of oral submission in the best way she could and offered to provide further information at the request of the Court, as referred to in this judgment.

Appeal hearing

[47]     Mr Burchell asserted in the course of presenting his oral submissions that he was not given sufficient time to properly present his submissions.  He went so far as to suggest this was by deliberate action of the Court in allocating him a hearing time later in the day.  I am quite satisfied that Mr Burchell had fair opportunity to present his submissions.  In addition to the oral submissions he made at the hearing, he filed written submissions just before the hearing commenced.   I have read those submissions.  After the Crown presented oral submissions Mr Burchell had a right of reply  and  the  Court  sat  until  approximately  5.30  p.m.  to  provide  him  with appropriate opportunity for his reply submissions.

Conclusions

[48]     Judge Callander saw and heard the prosecution witnesses give evidence at the District Court hearing.  He saw and heard them respond to cross-examination by Mr Burns which was extensive and detailed.  Mr Burns properly put to the witnesses Mr Burchell’s view of the incident, essentially that the Police, not he, were the aggressors.  Determination of the relevant issues, as correctly identified by the Judge at the outset of his judgment, depended on his assessment of the credibility and

reliability of the witnesses, especially Constable Daniels who was the only witness who saw Mr Burchell assault him.  The Judge accepted the prosecution evidence.  It was open to him to do so, and to find the charge proved on the basis of the evidence.

[49]     In R v Owen[8]  the Supreme Court endorsed the principles in the Court of Appeal judgment in R v Munro[9] in relation to appeals under s 385(1) of the Crimes Act 1961 and stated the correct approach to be:[10]

... a verdict would be unreasonable if,  having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.

[8] R v Owen [2008] 2 NZLR 37.

[9] R v Munro [2008] 1 NZLR 87 (CA).

[10] At [17].

[50]     In Munro the Court of Appeal cautioned that an appellate court is performing a review function, not one of substituting its own view of the evidence.  The Court said that the weight to be given to individual pieces of evidence is essentially a jury function.   In this case, that function was performed by Judge Callander.   There is nothing before me on appeal to indicate that his decision was unreasonable having regard to all the evidence available to him.

[51]     Mr Burchell does not accept the Judge’s determination.  Despite the myriad points he has raised on appeal and in submissions, ultimately he simply insists that his version of the incident is the correct one, as he attempted to repeat under the guise of legal submissions at the appeal hearing.   The matter has been heard and determined in the District Court.  I am quite unpersuaded that the manner in which the hearing was conducted was unfair or prejudicial to Mr Burchell in any respect. None of his grounds of appeal or the additional matters raised in submissions, has merit.

[52]     The appeal is dismissed.