Butcher v R
[2015] NZCA 102
•30 March 2015 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA334/2014 [2015] NZCA 102 |
| BETWEEN | CARL DAVID GEORGE BUTCHER |
| AND | THE QUEEN |
| Hearing: | 9 March 2015 |
Court: | Stevens, Asher and Williams JJ |
Counsel: | Appellant in person |
Judgment: | 30 March 2015 at 11.30 am |
JUDGMENT OF THE COURT
AThe applications by the appellant and the respondent to file affidavit evidence for the purpose of the appeal are granted.
BThe application for an extension of time in which to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Introduction
On 7 September 2010 the appellant, Carl David George Butcher, pleaded guilty to assaulting his wife. He was sentenced on this charge (as part of a larger sentencing exercise involving other charges) to a two month term of imprisonment.[1]
[1]R v Butcher DC Whangarei CRI-2009-011-388, 10 December 2010.
On 26 June 2014, almost four years later, he has filed an appeal against his conviction and sentence. He is acting for himself. While he did not specifically seek leave to appeal out of time, he requires such leave. He has not challenged his convictions on the other charges.
In support of his application he filed two affidavits. In response the Crown has filed an affidavit of a Constable who was in charge of the investigation into the assault, Maria Nordstrom. Mr Butcher opposed the filing of this affidavit.
Despite his criticisms of his lawyer Matthew Dixon, Mr Butcher had initially refused to waive legal professional privilege. After the filing of the Crown submissions, he waived that privilege. The Crown has now filed an affidavit from Mr Dixon about the sentencing. Mr Butcher has filed a reply to Mr Dixon’s affidavit.
We grant leave for both parties to file the further affidavits as we can see no prejudice to either.
Application for an extension of time in which to appeal
We treat this as an application for an extension of time to appeal. Mr Butcher has filed his own submissions. As best we can make out he raises three matters in particular. First, he appears to submit there were errors made and pressure put on him during the process leading up to the sentencing, and that he pleaded guilty while under a misapprehension or duress. Second, he submits that Mr Dixon, his lawyer at the sentencing, had previously represented Mrs Butcher, the victim of the assault, on a minor criminal matter and had a conflict of interest and should not have represented him. Third, he argues that he has produced strong fresh evidence to the Court, in particular a page of photographs that he says he had not been aware of, two of which depict the victim on the day after the assault. He asserts they show that he did not assault her. He also claims that telephone records, which he has not produced would show that Mrs Butcher was not present when he was said to have assaulted her.
This Court has affirmed on numerous occasions that it will only entertain an appeal that is many years out of time, such as this, in exceptional circumstances. Applications for leave to appeal out of time involve a balancing test, in which relevant considerations include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, and the practical utility of any remedies sought.[2] The extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown are also relevant.[3] A long delay can be a major factor weighing against leave, and, where unexplained, can be decisive.[4]
[2]R v Lee [2006] 3 NZLR 42, (2006) 22 CRNZ 568 (CA) at [97]–[99].
[3]At [99], citing R v Knight [1998] 1 NZLR 583 (CA) at 587.
[4]At [115].
Before determining the application it is necessary to briefly traverse the facts and the merits of the appeal.
Background
On 30 June 2009 a neighbour of Mr Butcher observed Mr Butcher and his wife walking in a paddock near their house. Mr Butcher suddenly turned and punched his wife in the head. She fell to the ground where Mr Butcher punched her in the head a number of times, and then kicked her in the body. She got up and crawled a few metres away and stood up. She was then punched again and fell to the ground. She was punched several further times to the head as well as being kicked again, before the attack stopped. She then got up and walked to the house nearby. The neighbour observed large bruises to both eyes, bruising to her head and bruising to the inside of her left knee. When spoken to by the police, Mr Butcher offered no comment.
The assault was not witnessed by any other person. However, two other neighbours saw Mrs Butcher on 1 July 2009 and noted bruises on her face and other parts of her body. Mrs Butcher’s mother visited the property on 30 June 2009 and saw her daughter. She noted that her daughter’s face was swollen and her left eye was puffy. She had two large black eyes. Constable Nordstrom, the officer‑in‑charge, also visited her on 30 June 2009. She observed bruises around Mrs Butcher’s eyes and a bruise inside her knee.
There was thus in total one eye witness of the assault, and four corroborative witnesses who within a short time saw injuries consistent with the assault.
Mr Butcher, having pleaded guilty, was sentenced on 10 December 2010 to a total of 12 months’ imprisonment on two firearms charges, together with a cumulative two month term for the assault. The end sentence was 14 months’ imprisonment.[5]
[5]R v Butcher, above n 1, at [17].
Mr Butcher puts forward three factors to explain the late application for leave. First, he claims that his lawyer was in a conflict of interest situation and misled him as to the result. Second, he says that he has received new evidence, in particular two photographs of his wife taken at about the time of the assault showing, he submits, that she was not suffering injuries consistent with the allegation. Third, he explains that he is now involved in defended custody proceedings with his former wife, and it will assist his position in those proceedings if the conviction is set aside.
For reasons that we will now set out, we do not consider any of the first and second arguments have merit. The third point is not an explanation or excuse for the delay, and we put it to one side.
Appeals against conviction where an appellant has pleaded guilty
In R v Le Page this Court observed:[6]
… it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985] 1 NZLR 122 are examples.
[6]R v Le Page [2005] 2 NZLR 845 (CA) at [16].
There are at least three possible sources of miscarriage of justice that were identified in R v Le Page. The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge.[7] The second is where on the admitted facts the appellant could not in law have been convicted of the offence charged.[8] The third is where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law.[9] It was noted in relation to the first exception that where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element.[10]
Our determination
Events prior to trial
[7]At [17].
[8]At [18].
[9]At [19].
[10]At [17].
Mr Butcher asserts that he understood from Mr Dixon that he would be sentenced on the basis of time served. We accept without reservation Mr Dixon’s denial in his affidavit that he represented that any deal had been reached along these lines. Mr Dixon accepted that he was to seek such an outcome in his submissions in mitigation. Mr Butcher’s proposition is not consistent with what the Judge said on sentencing about time served being a submission of Mr Dixon, which was accepted without protest by Mr Butcher at the time.
Conflict of interest
Mr Dixon acted for both Mr and Mrs Butcher on various matters. We do not accept Mr Butcher’s submission that Mr Dixon was in a conflict of interest situation, or that there was any conspiracy between Mr Dixon and Mrs Butcher. Mrs Butcher strongly denied any assault to the Police. She was plainly supporting Mr Butcher in his defence of the charges. Mr Dixon points out that Mrs Butcher enabled him to communicate with Mr Butcher, as Mr Butcher was in custody at the time. Mr Dixon deposed that Mr and Mrs Butcher were very much a “united force” during the time he worked for Mr Butcher and that “she was devoted to him and sympathetic to his predicament”. That is consistent with all the material before us, and we accept it. In those circumstances there was no conflict of interest.
New evidence
We have viewed the photographs that Mr Butcher relies on as new evidence of his innocence. He claims that these show no injuries, and support his denial of the assault. He claims that they were never disclosed to him. We cannot accept either proposition.
There are two photographs in question, both taken of Mrs Butcher on the day of the assault by Constable Nordstrom. Mrs Butcher was clearly anxious not to be photographed by the Constable, as her hand is held out towards the camera lens to keep it away, and to hide part of her face. The photographs are not of particularly good quality. One shows a serious bruise to Mrs Butcher’s leg, and the other, although of a side glimpse of her face behind her hand, what appears to be possible bruising to her right eye and other facial features. The injuries shown are not particularly graphic, and the photographs would not be conclusive evidence of her injuries because of the limited nature of their content and poor quality. However, they are consistent with the Crown case and do not, as Mr Butcher has asserted, show that Mrs Butcher cannot have been assaulted. We record also that we have not been pointed to any aspect of the telephone records that assist Mr Butcher.
Moreover, we cannot accept Mr Butcher’s assertion that the photographs were not shown to him. Constable Nordstrom has in her affidavit stated that she provided the photographs to Mr Butcher’s original counsel, Mr Ron Mansfield. While Mr Dixon has no clear recollection of the photographs, we have no indication that Mr Mansfield, an experienced barrister, failed to show the photographs to Mr Butcher. We bear in mind that Mr Butcher is making assertions about what he can remember of events that took place some years ago. We do not consider that Mr Butcher has shown that there was anything unfair in the circumstances that led to him pleading guilty.
The second and third factors referred to in R v Le Page are also not shown to be present. On the facts before the Court, Mr Butcher was properly convicted of assault. Mr Dixon had managed to negotiate the amendment of a charge of assault with intent to injure to a charge of male assaults female. This was a significant achievement by Mr Dixon as the facts in our view would have supported the more serious charge. The case against Mr Butcher was strong, and Mr Butcher pleaded guilty to the reduced charge. Mr Butcher has a previous history of assaults, which could have warranted an uplift. The end sentence of two months was at the lower end of the range, given the gravity of the assault. Further, no ruling by the Judge has been pointed to, which embodied a wrong decision on a question of law.
Conclusion
There is no satisfactory explanation for the delay in filing the appeal. As to the merits, there is no basis for criticising the performance of Mr Dixon. In our view the Crown case against Mr Butcher was strong and we can understand why he pleaded guilty, particularly in the light of Mr Dixon’s negotiation of the lesser charge of male assaults female. As we have said, the photographs that he now claims to have discovered in the possession of the Police, if anything, would have worked against a successful defence. Mr Dixon represented Mr Butcher effectively and competently on the assault charge he faced.
Result
Application for extension of time in which to appeal declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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