Burchell v The Queen

[2010] NZCA 311

IN THE COURT OF APPEAL OF NEW ZEALAND

CA326/2009
[2010] NZCA 311

BETWEENLLEWELLYN WILLIAM BURCHELL

Appellant

ANDTHE QUEEN

Respondent

Hearing:12 July 2010

Court:Hammond, Chisholm and Andrews JJ

Counsel:Appellant in person

J M Jelas for Respondent

Judgment:20 July 2010 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Hammond J)

Table of Contents

Para No

Introduction  [1]

A difficult appeal   [2]

The issue before the trial Court  [6]

The Judge’s findings  [12]

Mr Burchell’s complaints  [23]

Judge Hubble’s earlier decision  [24]

The injuries  [28]

Witnesses  [33]

Incomplete record  [41]

An inference of an intention to injure  [44]

Conclusion on the conviction appeal   [50]

The sentence appeal  [52]

Other matters  [55]

Introduction

[1]        Mr Burchell was charged with injuring with intent to injure a Community Constable, X, on 24 May 2007.  He was convicted after trial without a jury by Judge Kiernan in the District Court at Auckland.  The Judge gave her reasons for the conviction on 28 January 2009.[1]  On 3 April 2009 Mr Burchell was sentenced to a term of two years imprisonment.  He has now served his sentence.  Mr Burchell continues to protest his innocence.

A difficult appeal

[1]      R v Burchell DC Auckland CRI-2007-044-3654, 28 January 2009.

[2]        This has been a “difficult” appeal.  Mr Burchell has chosen to represent himself, as is his right.  He considers that the Police have lied in some respects and that there has been a conspiracy to “get” him.  Given concerns of that kind, the ground he has sought to cover is much wider than the more precise issues that were before the Court below.

[3]        Further, as Mr Burchell himself candidly said before us, he has no appreciation of appellate processes and jurisprudence in this jurisdiction.  Getting the appeal advanced has been a trying business for Court staff and several judges of the Court of Appeal who have had the burden of case-managing the case over a long period of time.  A perusal of the Court record indicates that Mr Burchell has not aided his own cause: he has not complied with Court directions; and the rules of court relating to appeals seem to have passed him by completely.  For instance, he has not followed the rules at all in areas such as allegations of counsel incompetence and fresh evidence.  He did not file written submissions until the very eve of the appeal.  And these, when filed, continuing his tradition – apparent throughout the appeal and its long history – were of a distinctly rambling character.  Then at the hearing itself he took issue with the record which had been sent up.  He wanted to hand up to the Bench all sorts of material in an effort to correct that record.

[4]        All of that said, Mr Burchell is entitled to his appeal.  This has made it necessary, in our view, to approach the hearing on the basis that ultimately the Court has the responsibility of trying to ascertain whether a miscarriage of justice has occurred, and if so, on what basis.  The burden fell on the panel to have a lengthy discussion with Mr Burchell during which the panel endeavoured to ascertain whether there were any factors in Mr Burchell’s favour. 

[5]        In the end, and in fairness to him, Mr Burchell seemed “to get the hang of it” rather better and orally provided the responses the panel was looking for.  We simply record that if our approach was less than orthodox, at least it provided the Court with what we believe is a fair appreciation of Mr Burchell’s concerns.

The issue before the trial Court

[6]        The charge related to an incident in the car park outside the Sunnynook Community Centre in Auckland.  Mr Burchell had hired a room there for his own purposes.  The very first day he was there he had two visitors, who gave differing accounts as to why they were there.  This aroused the suspicion of two of the staff who worked at the Centre.  One of them researched Mr Burchell’s name on the internet.  As a result of what was found there, Mr Burchell was told that he could not use the room at the Centre beyond the second day.  Mr Burchell asked for the information staff had on him.  He was handed the downloaded internet material.  He refused to give it back. 

[7]        Mr Burchell left the Centre and went out to his car in the car park.  His wife was with him.  His car window was open when Constable X came up to the car.  Allegedly, she asked him about the papers.  According to her, Mr Burchell had started the engine in his car.  The Constable reached in through the open driver’s window for the keys.  On her evidence, Mr Burchell clamped his hand over hers.  The Constable told him he was under arrest for assault (by implication the assault being the intentional application of force to her hand).  She put one end of a handcuff on his arm, the other end still hanging free. 

[8]        Mr Burchell disputes most of this.  He maintains he did not assault X, and was never arrested for assault.  In any event, plainly he got, or was got out of the car.  It is what happened thereafter which formed the basis of the charge which went to trial. 

[9]        Constable X maintained that Mr Burchell grabbed her by the throat by one hand and manhandled her backwards across a grass berm towards the footpath at the edge of the road and crashed her to the ground, with him on top of her.  She also maintained that she received external injuries in the form of abrasions to her back and internal injuries which the Crown later maintained (on medical evidence) to be a fractured rib. 

[10]       Mr Burchell’s account was quite different: that the Constable pepper sprayed him in or at the car, and was pulling or tugging him along when she fell over and he fell on top of her.  The defence case was that Mr Burchell was himself the victim of assault at the hands of X and that he was unjustifiably arrested by her.  It was said that he did not injure the officer at all, had no intent to injure her, and that “the prosecution case essentially has been manufactured and invented by the police officer to disguise her assault upon him”.[2]

[2]At [8].

[11]       In this context, the trial Judge with respect correctly and concisely framed the issues she had to decide this way:[3]

So the issue in this trial really can be summed up in this way, how did Constable [X] suffer the injuries, did she fall or was she pushed.  If she was pushed by the accused did he intend to injure her? 

[3] At [34].

The Judge’s findings

[12]       The trial took over a week.  Mr Burchell was represented.  Both he and his wife gave evidence.  There was extensive cross-examination of witnesses.

[13]       The Judge correctly reminded herself that she had to be satisfied beyond reasonable doubt that Mr Burchell had injured Constable X and that there was no reasonable doubt that he had intended to injure her.

[14]       The critical findings by the trial Judge were that Constable X:[4]

was assaulted in the car by Mr Burchell holding her hand.  There was a struggle outside the car, his hand on her throat, he pushed her back, he caused her to fall flat on her back with her upper body on the pavement area, and he fell on top of her. 

[4] At [63].

[15]       Injury was caused.  And the Judge found the accused intended to injure Constable X:[5]

In the heat of those few moments holding a small-framed police officer by the throat as I have found, pushing her back as I have found onto the pavement, and then falling on top of her, the only logical and proper conclusion I can draw is that in pushing the police officer in these circumstances the accused must have intended to cause her harm that was more than trifling or transitory. 

[5] At [64].

[16]       In reaching those findings the Judge heard from 14 witnesses.  She noted the evidence of seven witnesses as being directly relevant to what occurred in those few minutes: Constable X, the two women who worked at the Centre (whom we designate as Y and Z), a Mr and Mrs Godfrey, and Mr and Mrs Burchell.

[17]       The Judge accepted the primary account given by Constable X.  She then looked to see what evidence (if any) supported X’s account.  She put the evidence of a Mr and Mrs Godfrey to one side.  The Judge said, “They were simply too far away.  There was little detail in their accounts and each of them had fragmented views which were interrupted.”[6]  Likewise, Z (from the Centre) “did not have a clear view”.  She did describe a shouldering manoeuvre by Mr Burchell, “but did not see how the two people ended up on the ground”.[7]

[6] At [51].

[7] At [50].

[18]       The Judge did however consider Y’s evidence to be “important” in that “she gives the closest independent view of what occurred”.[8]  Y said she saw Mr Burchell push the police officer causing her to fall.  She also saw Mr Burchell straddling the police officer.  The Judge considered that other details of her evidence closely supported the evidence of the police officer.

[8] At [52].

[19]       Mr Burchell’s trial evidence was that he went out to his car with his wife, and Constable X then came out to the car.  He said he had his hands on the steering wheel and was turning to ask his wife for the ignition key.  He said he never got it.  The police officer abruptly cuffed him and assaulted him by jerking on the handcuffs.  When he asked what he was arrested for, he claimed he was told he had assaulted “the ladies in the Centre”.  Mr Burchell said that he did not touch the police officer.  He did not do anything except call 111 with his left hand for help because he considered Constable X had aggressively assaulted him. 

[20]       He said that Constable X then pulled the car door open and yanked on the handcuff.  It was at that stage that he was pepper sprayed.  He said he was again yanked by the police officer when he got out, then Constable X tripped over the kerb, landed on the grass and he fell next to her.  He said he did not hit her or push her at any time.  He never had a hand on her throat.  And she was never on the footpath area on her back.  He claimed (Constable Lamb by now having arrived in a police car) that he was mistreated by the Police on the way to the police station.

[21]       Mrs Burchell’s evidence was that Constable X had held Mr Burchell’s wrist (which was on the steering wheel).  She had put a handcuff on his right hand and was pulling him out of the car by the handcuff.  Both Constable X and Mr Burchell fell somewhere on the grass behind the car.  She gave no evidence of pepper spray being administered while Mr Burchell was still in the car.  She claimed that the keys for the car were always in her handbag during this incident.

[22]       It is quite apparent that the Judge reached her view of the matter on a “saw and heard” basis.  For the reasons given by her, the Judge accepted the Constable’s evidence.  She thought it was supported in some ways by the evidence of other witnesses.  She did not accept Mr Burchell’s account, but having put it aside, she was still satisfied beyond a reasonable doubt that the elements of the charge were made out on the evidence advanced for the Crown.

Mr Burchell’s complaints

[23]       Mr Burchell complains that the Judge got it horribly wrong.  We arrange what he said to us at the hearing under the following several headings.

Judge Hubble’s earlier decision

[24]       Mr Burchell takes some comfort from and sought to rely on an oral judgment of Judge Hubble delivered on 1 September 2008 after an abortive attempt to try the case.[9]  There had also been much difficulty in getting this case advanced in the District Court.  The Crown sought to amend the indictment (from “intent to injure” to “reckless disregard”).  Judge Hubble was concerned about that, because the case had been run up until that point on the more serious basis; there had been difficulties over witnesses; and the Judge was alive to the fact that there could have been a possible accidental tripping by X in this case.  The Crown had wanted some evidence read.  The Judge declined to allow that to happen “given what could be a fine line between an intentional assault and a possible accidental falling”.[10]  He also declined the amendment sought by the Crown and ruled that the trial would have to be aborted at that time, and witnesses were to be heard without evidence being read.  That, with respect, was entirely the appropriate thing to do. 

[9]      R v Burchell DC Auckland  CIR-2006-044-7795, 1 September 2008.

[10] At [8].

[25]       But the ruling does not get Mr Burchell anywhere now.  In effect he seeks to rely on the record of what happened before Judge Hubble and the concerns he had expressed as being supportive for him now.  As we endeavoured to explain to Mr Burchell, for the very reasons given by Judge Hubble, the witnesses had to be examined fully before Judge Kiernan.  And she had to form her own view of them, and did so.

[26]       Mr Burchell complained that the record was, in effect, incomplete because it did not show Judge Hubble’s concerns, which he considers are in his favour.  But what Judge Hubble did or said is not relevant to what Judge Kiernan did.

[27]       There is nothing in this appeal point.

The injuries

[28]       Mr Burchell’s basic proposition here is that he did not injure Constable X.   He says that the fractured rib relied on by the Crown did not come about in this incident.  In short, his proposition is that there was no relevant injury and therefore a necessary element in the charge was not proved.

[29]       There is a short answer to this point.  Dr Mules examined Constable X and gave evidence for the Crown.  He gave evidence of abrasions to her back and arranged for X-rays of her chest to be taken.  He relied on the report from the radiologist that there was a recent fractured rib, for the view he gave on that.  Photographs were also taken after the incident.  We asked for them to be handed up.  Leaving aside altogether the question of a fractured rib, which has much exercised Mr Burchell, the photographs plainly show distinct abrasions to the Constable’s back.  The skin is scarred and the surface broken, which would easily meet the legal definition of a wound (that is, a breaking of the skin) and on this basis alone the Constable was injured.  The abrasions were not minimal or trifling.

[30]       Mr Burchell wanted to, in effect, track back down the line of inquiry regarding the fractured rib, with a view to establishing that even if there was a fractured rib it did not occur on this particular occasion.  That inquiry might well go to the severity of the injuries sustained by the Constable (and hence be relevant to sentence). 

[31]       Mr Burchell produced to us a document obtained under the Official Information Act 1982 and the Privacy Act 1993 relating to Constable X, and signed off by a radiologist, which refers to a fracture of the fifth left rib which “appears new”; and a slight deformity of the second left rib laterally, with the words “? old healed fracture or new”.  Whether it was this document which set the hare running for Mr Burchell’s assertion that there had been “prior injuries” we cannot say.  But the very document produced to us by Mr Burchell himself appears to counter the proposition he argues against: that there appeared to be a new fracture.

[32]       There is nothing in this appeal point.

Witnesses

[33]       Mr Burchell raised a clutch of concerns about a number of witnesses which he says were either not called or were not examined in the way he considered they should have been.  These were witnesses who Mr Burchell considered would help to establish that this was a “concocted” case against him.  He wanted these witnesses called before us.  Indeed, in one exchange with court staff prior to the hearing he had said that he wanted 30 witnesses called. 

[34]       Before us that narrowed somewhat to a Constable Lamb; a Constable Brown; and to persons from or associated with the Accident Compensation Corporation.  Through the latter he would have sought to establish what he suggests to have been accident compensation fraud on the part of Constable X (and of course he argued that this reflected on the credibility of Constable X).

[35]       Most of these matters are not fresh, or reflect on the way counsel handled the trial.  We note that we have no application as to counsel competence before us.

[36]       The only matter of any real relevance in this clutch of concerns relates to a possible witness, Kara Jones. 

[37]       Mr Burchell said there was an improper failure on the part of the New Zealand Police, leading to Ms Jones not being called.  There is a dispute as to whether there had or had not been disclosure of the existence and contents of a job sheet.  In it, the officer records that:

I have made a phone call to the above witness [Ms Jones].  Kara said she did not see any of the assault.  She saw from when the man was in handcuffs and being put into the police car.  She said the man in handcuffs looked quite calm, solemn, not angry or anything like that.

[38]       The reference to Mr Burchell being put into a police car is what happened to him after Constable Lamb arrived.  And the reference to his demeanour is how he appeared to Ms Jones at that time.  It was hard to follow what submission could be made on the basis of this evidence if it were given.  Mr Burchell appeared to be suggesting that if he was calm then, it told somehow and somewhat against the proposition that he had been in a distinctly agitated frame of mind earlier.

[39]       We cannot see how this evidence could realistically have had any impact on the trial findings.  And on her own “evidence” what Ms Jones saw was after the event in question.

[40]       In short, we have been unable to detect – forgetting the niceties as to whether we can look at it at all – anything to add to or contradict the account of witnesses before the Judge and reviewed by her in forming the view she came to as to what had happened on this occasion.

Incomplete record

[41]       Mr Burchell complained that the record was inaccurate or incomplete in some places.  In some respects he is right.  At some places discussions with counsel were not recorded (presumably on the basis that the transcriber thought that he or she was transcribing only the evidence, a difficulty that this Court not infrequently encounters with District Court transcripts).  However, no specific allegations were made as to anything in those exchanges that might give cause for concern.

[42]       A matter which we were unable to unravel is page 249 of the transcript which, in the copy produced to us by Mr Burchell, reads:

It is agreed between counsel for the Crown and counsel for the defence that a charge of theft in relation to the matter now before the Court and specifically papers was withdrawn without notice on 1 September 2008.  This is made pursuant to s 9 of the Evidence Act 2006. 

That page is then endorsed, “I agree that the above facts can be agreed by consent”, and it appears to be signed and dated by Mr Burchell. 

[43]       We surmise that at one stage Mr Burchell’s failure to return the Community Centre papers must have formed the basis of a possible charge of theft.  But that was then given away by the Police, and a record was made of it.  It could very well be – though we do not know this for sure – that the transcriber of the record that came to the Court of Appeal simply left what we have recited out of the record, on the footing that it was a matter which was no longer relevant.  But, in any event, nothing turns on that point.

An inference of an intention to injure

[44]       Mr Burchell did not directly raise this point on the appeal.  He did say in evidence at trial that he did not intend to injure Constable X.  We took the point up, because if he had a defence it was most likely under this head.  The Judge had to find, to the criminal standard of proof, that Mr Burchell had such an intention.

[45]       It is best to set out again verbatim the Judge’s finding on this:[11]

In behaving in the way that I have found, did the accused intend to injure?  I do not accept the submission that because the accused told the 111 call taker that he would co-operate he could not then possibly have intended to injure the police officer or indeed intentionally injure her just a few minutes later.  In the heat of those few moments holding a small-framed police officer by the throat as I have found, pushing her back as I have found onto the pavement, and then falling on top of her, the only logical and proper conclusion I can draw is that in pushing the police officer in these circumstances the accused must have intended to cause her harm that was more than trifling or transitory.  Indeed the injuries suffered could well have been far worse.

[11] At [64].

[46]       It has to be borne in mind that the Judge had found as primary facts that Mr Burchell grasped X’s throat; that he manhandled or pushed her backwards, and that he drove her into the ground.  And the Judge clearly had in mind that in the circumstances there was the possibility of the Constable’s head striking the ground on the kerb or something of that kind.

[47]       The Judge was entitled to draw an inference as to the intent, based on the primary facts as found by her.  Indeed in a case of this kind that is routinely the only way that a criminal intention can be established.

[48]       Once the primary facts are established, and if they were of the character found by this Judge, then it was entirely open to her to draw the inference she did.  It has not been established that she was wrong.

[49]       There is accordingly nothing in this appeal point either.

Conclusion on the conviction appeal

[50]       Like Judge Hubble, we have taken seriously the proposition that it is not implausible to say that the officer may have fallen down and been injured as a result of tripping in a relatively minor scuffle, or even independently of it.  But this is a case in which the Judge had before her the evidence of all the persons who were present.  The assessment of the witnesses and their evidence was a matter for the trier of fact, in this case, the Judge. 

[51]       Mr Burchell had the burden of showing that the Judge was wrong.  We are not satisfied that he has done so.  The conviction appeal is dismissed.

The sentence appeal

[52]       Nothing was said about the sentence appeal in Mr Burchell’s written submissions, nor did he address us on the point orally.  The Judge took a starting point of 20 months imprisonment, which she increased for certain aggravating factors; this being offending involving actual violence and the fact that there were what the Judge found to be moderately serious injuries.  She also considered it to be an aggravating feature that the attack was on a police officer involving the execution of her duty.  The Judge also noted the previous convictions of Mr Burchell for violence in New Zealand and threatening to kill.  She could not identify any mitigating features.  The Judge increased the sentence of 20 months to 24 months for these aggravating features.

[53]       It cannot be suggested that the Judge proceeded on a wrong principle, or that she failed to have regard to, or inappropriately dealt with the aggravating and mitigating features.

[54]       The appeal against sentence is dismissed.

Other matters

[55]       In his written submissions Mr Burchell sought reimbursement “for the time spent in prison, and the financial hardship and cost to him and his family between 24 May 2007 and July 2010”.  He also claimed the financial cost of a return flight from South Africa to New Zealand.  This was because his mother had come from South Africa to see him but could not because of what had happened.  None of those matters are within the jurisdiction of this Court on this appeal.

[56]       Mr Burchell also sought name suppression.  He considers he has not been well-treated by the media.  The proper approach to that question is that the principle of open justice applies unless it has been displaced by some clear and compelling factor, which is usually grounded in rights to a fair trial.  There is no proper basis for suppression of Mr Burchell’s name in this case.  The application is declined.

Solicitors:

Crown Law Office, Wellington for Respondent