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Butcher v R

Butcher v R

Case [2015] NZCA 102 30 March 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA334/2014
[2015] NZCA 102

BETWEEN	CARL DAVID GEORGE BUTCHER Appellant
AND	THE QUEEN Respondent

Hearing:	9 March 2015
Court:	Stevens, Asher and Williams JJ
Counsel:	Appellant in person P D Marshall for Respondent
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…

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 Butcher v R

Details

AGLC: Butcher v R [2015] NZCA 102
Case: [2015] NZCA 102
Decision Date: 30 March 2015 at 11.30 am

CaseChat Overview and Summary

Carl David George Butcher, the appellant, brought an appeal against his conviction and sentence for assault, which he had pleaded guilty to four years prior. The respondent, the Queen, was represented by P D Marshall. The court, comprising Stevens, Asher, and Williams JJ, heard the appeal on 9 March 2015 and delivered its judgment on 30 March 2015 at 11.30 am. The appellant sought leave to appeal out of time and also requested permission to file affidavit evidence to support his application.

The central legal issue before the court was whether the appellant's delayed appeal against his conviction and sentence should be entertained. The court had to consider the application for an extension of time in which to appeal, weighing factors such as the strength of the proposed appeal, the potential for a miscarriage of justice, and the impact on the administration of justice and the Crown. The court had to examine the appellant's claims that there were errors and pressure during the sentencing process, that his lawyer had a conflict of interest, and that he had new evidence to support his appeal.

The court found that the appellant had not provided a satisfactory explanation for the significant delay in filing the appeal. It concluded that the appellant's arguments regarding his lawyer's conflict of interest and the alleged errors in the sentencing process were without merit. The court also rejected the appellant's claim that he had new evidence to support his appeal, finding that the photographs he relied on were not new and did not disprove the assault. The court determined that the appellant had not shown any miscarriage of justice that would warrant entertaining the appeal.

The court declined the application for an extension of time in which to appeal, finding no exceptional circumstances that would justify entertaining the late appeal. The court emphasised the importance of the finality of decisions and the potential prejudice to the administration of justice and the Crown if such appeals were to be entertained without good cause.

In summary, the court dismissed the appellant's application for leave to appeal out of time, declining to entertain the appeal against his conviction and sentence for assault. The court's decision underscores the importance of adhering to the timely filing of appeals and the need for strong justification to entertain late appeals.

Orders