Douglas v Police - [2013] NZHC 2651

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-412-000012 [2013] NZHC 2651

BETWEEN
PAUL DOUGLAS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	25 September 2013
Appearances:	Appellant Appears in Person R P Bates for Respondent
Judgment:	10 October 2013

JUDGMENT OF D GENDALL J

[1] On 15 May 2007, after a defended hearing, the appellant was convicted of assault pursuant to s 9 Summary Offences Act 1981 in the District Court at Dunedin. Following conviction, he was fined $200 and ordered to pay witnesses expenses of
$25 and court costs of $130.

[2] Now, on 26 April 2013, some five years and 10 months later, the appellant has filed an application for leave to appeal that decision out of time.

Background facts

[3] Some background facts are useful here.

[4] On 8 September 2006, the appellant was at the Dunedin Public Hospital for an appointment. It is said he became abusive towards staff and security officers were called.

[5] Two security officers arrived, one a Mr Papahadjis, and one, a Mr Tuitupou.

DOUGLAS v NEW ZEALAND POLICE [2013] NZHC 2651 [10 October 2013]

[6] The appellant then, it is alleged, kicked one security guard in the leg and struck the other on the arm.

[7] At the District Court hearing in May 2007, Mr Papahadjis gave evidence and the appellant gave evidence. Mr Tuitupou did not as it seems he had left to return to his home in Tonga prior to the hearing. A hospital doctor had apparently made a statement for the assistance of the Court, but he was not called upon to give viva voce evidence.

[8] Originally the appellant had been charged with two counts of assault, one against Mr Papahadjis and one against Mr Tuitupou. In the District Court, the charge against Mr Tuitupou was either withdrawn or, alternatively, the appellant was acquitted of the charge. He was convicted, however, with respect to the assault on Mr Papahadjis.

[9] It is now over six years since the District Court hearing on 15 May 2007. As a result of the significant delay which has occurred, it appears there is now no record of the evidence from the hearing, the Court having advised that any recording of the evidence and the Judge’s decision would have been destroyed in accordance with usual practice after a period of five years. In addition, there is no typed copy of the sentencing notes of the District Court Judge in question, Judge Macdonald, as is normal in cases where imprisonment is not imposed.

[10] At the District Court hearing Ms Louise Garthwaite appeared as counsel for the appellant. She advises that she was not been able to locate the appellant’s file. The respondent confirms also that the original hard copy of the police file on this matter has also been destroyed, although it does seem there may be electronic copies of part of the police file available.

[11] Following his conviction and sentencing, the appellant says he did not lodge an appeal…

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 Douglas v Police

Details

AGLC: Douglas v Police [2013] NZHC 2651
Case: [2013] NZHC 2651
Decision Date: 10 October 2013

CaseChat Overview and Summary

In the case of Douglas v Police, the appellant, Paul Douglas, sought leave to appeal his assault conviction from the District Court to the High Court, out of time. The original conviction occurred on 15 May 2007, but Douglas filed his application for leave to appeal on 26 April 2013, more than five years later. The High Court was required to determine whether the significant delay justified granting Douglas leave to appeal and, if so, whether the appeal had sufficient merit.

The court examined several factors in reaching its decision, including the length of the delay, the reasons for the delay, the strength of the appeal, and the impact on the administration of justice. The court found that the delay was excessive and unexplained, with Douglas providing unconvincing reasons for not appealing sooner. Furthermore, the court determined that there was no merit to the appeal, as the original hearing appeared to be a straightforward summary hearing focusing on witness credibility. The court also noted that the absence of a record of the proceedings, due to the significant delay, did not warrant granting leave to appeal. Ultimately, the court concluded that the appellant failed to demonstrate any special circumstances that would justify granting leave to appeal. Therefore, the application for leave to appeal was declined.

The court's final orders were that Douglas's application for leave to appeal his conviction in the decision of the District Court dated 15 May 2007 be declined.

Orders