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…

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 Burchell v The Queen

Details

AGLC: Burchell v The Queen [2010] NZCA 311
Case: [2010] NZCA 311
Decision Date: 20 July 2010

CaseChat Overview and Summary

The appeal against conviction and sentence brought by Llewellyn William Burchell has been dismissed by the New Zealand Court of Appeal. Burchell was convicted of injuring a Community Constable with intent to injure in the District Court at Auckland. Burchell argued that the trial Judge's findings were incorrect and that there was a lack of evidence to support the conviction. The Court of Appeal found that the trial Judge had correctly assessed the evidence and found Burchell guilty beyond a reasonable doubt. The Court of Appeal also dismissed the appeal against the sentence, finding that the trial Judge had appropriately considered the aggravating and mitigating factors in determining the sentence. The Court of Appeal declined Burchell's request for reimbursement for time spent in prison and the cost of a return flight from South Africa to New Zealand, finding that these matters were not within the jurisdiction of the Court on this appeal. The Court also declined Burchell's application for name suppression, finding that there was no proper basis for suppression of his name in this case.

Orders