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 In the District Court, the charge against Mr Tuitupou was either withdrawn or, alternatively, the appellant was acquitted of the charge.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 at the time for several reasons.

(a)First, his counsel at the time, Ms Garthwaite, was heavily pregnant and he says he did not think it appropriate to impose on her;

(b)Secondly, he says he did however seek advice as to an appeal from alternative counsel, an experienced criminal barrister from Dunedin, a Mr Henderson. The appellant says that Mr Henderson advised him that he should “take this conviction on the chin and get on with life” and also that his costs for an appeal would be beyond the appellant’s ability to pay.

(c)Before me, the appellant acknowledged that he accepted this advice and his conviction, but only very reluctantly.

[12]  Time marched on and then in February 2013 the appellant says he discovered on news websites or press reports that  Tongan  nationals  who  had  come  to New Zealand at around some earlier time in particular cases had criminal records which had been suppressed. The appellant contended that Mr Tuitupou was indeed a Tongan national and he suggested that without more, Mr Tuitupou may have been “one of those” Tongan criminals, particularly as he had departed New Zealand prior to the original District Court hearing on 15 May 2007 and was unable to give evidence there. It needs to be made clear, however, that the appellant placed no evidence of any kind  before  the  Court  to  substantiate  this  claim  concerning Mr Tuitupou. It is a bare allegation and no more.

[13] Notwithstanding this, the appellant argues here that  this  February  2013 “news” constitutes new “evidence” in this matter, as does a diary note entry the appellant says he made immediately after the hospital incident in question. This diary note he maintains confirms that Mr Tuitupou had acknowledged in discussions with him that he was Tongan.

Leave to bring application out of time

[14] The application to extend the time for filing of the appellant’s appeal is brought pursuant to s 123 Summary Proceedings Act 1957.

[15] The powers of this Court to extend time pursuant to s 123 Summary Proceedings Act 1957 are discretionary and are not expressly circumscribed in any way.

[16] Section 119 Summary Proceedings Act 1957 prescribes the procedure on an appeal from the District Court to the High Court and notes that all general appeals are to be by way of a re-hearing. Where a question of fact arises on an appeal the evidence taken in the District Court on the question shall, unless the High Court otherwise directs, be brought before the High Court by:

The District Court Judge’s notes of evidence;

Such other materials as the High Court may deem expedient;   Any affidavits filed in the District Court;

Any exhibits produced in the District Court;

Producing any copy of the evidence or statements of any witnesses who have given evidence pursuant to ss 31, 32 or 33 of the Act.

[17] Pursuant to s 119, the High Court may in its discretion re-hear the whole or any part of the evidence but shall re-hear the evidence of any witness if the Court has reason to believe that any note of the evidence of that witness made by the District Court Judge is or may be incomplete in any material particular.

[18] The High Court also has discretion to hear and receive further evidence which could not in the circumstances have been reasonably adduced at the hearing.

The authorities on the issue of extension of time

[19] It would appear that there have been few decisions made pursuant to s 123 Summary Proceedings Act 1957 regarding applications to extend the time for filing appeals.

[20] In one such decision, that of Police v Hill,1 Tipping J held at 281 that the following matters are generally relevant:

1       Police v Hill [1990] 6 CRNZ 280 (HC).

(a)Whether the failure to file the necessary appeal papers within time has arisen in circumstances which ought reasonably to be excused.

(b)Whether the proposed respondent has suffered any prejudice by the delay, being prejudice of a kind other than what is inherent in the extension of time itself.

(c)Whether the proposed appeal has sufficient prima facie merit and in the case of an appeal on a point of law, sufficient prima facie utility and justice exists to warrant the extension of time sought.

(d)Such other matters as may bear on the exercise of the discretion in the particular case.

[21] By analogy, s 388 Crimes Act 1961 provides time limits for appeals to the Court of Appeal, and again sets a 28 day time limit. It also allows an extension of this time for appeal to be granted by the Court of Appeal.

[22] This s 388 therefore is analogous to s 123 Summary Proceedings Act 1957 and I am satisfied that the same considerations for extending time to appeal will apply.

[23] While s 388 does not describe any principles or criteria to be applied in determining applications for extension of time for appeal, these have been stated quite firmly by the Court of Appeal in the decisions in R v Knight2 and confirmed in R v Lee.3

[24] In Knight, the Court held that the discretion to grant an extension of time should be exercised after the Court determined what was in the interests of justice by balancing a number of factors:4

2       R v Knight [1998] 1 NZLR 583 (CA).

3       R v Lee [2006] 3 NZLR 42 (CA).

4       R v Knight, above n 2, at 587.

The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interests of the individual applicant in having the conviction reviewed.

[25]     The Court went on to say that other relevant considerations in the overall determination whether an extension of time should be granted were:5

...the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is flood gates considerations, and the absence of prejudice to the Crown.

[26]     In Lee, the Court of Appeal considered the Knight test and held:6

The balancing approach set out in Knight where all the competing interests are taken into account, appears to us manifestly to be the correct one. There is an appeal as of right in criminal cases if the appeal is filed within the prescribed 28 day period. After that period, whether or not a convicted person can appeal depends on whether an extension is granted. A person making an application for an extension of the 28 day limit is seeking an indulgence from the court. The statute provides no guarantee that it will be granted. We accept Ms Markham’s submissions that it cannot have been intended that those seeking to appeal out of time should be in exactly the same position as those appealing within time, no matter how long out of time, no matter what the reasons for the delay and no matter what the effect may be on any victims or on the due administration of justice.

[27]     The Court went on to say at:7

The test to be applied to applications to extend time to appeal is a balancing one, with the aim being to ascertain where the interests of justice lie, both as regards the would-be appellant and society at large. All relevant factors must be taken into account, including the factors identified at para [99] above.

[28]     The Court went on to apply the balancing test by considering the following factors:8

the strength of the appeal;

whether or not any efforts were made to appeal within time;

5       At 589.

6       R v Lee, above n 3, at [102].

7 At [106].

8       At [108] – [118].

thelength of delay before making the application, noting “the Court will be much more inclined to grant leave where the delay is short (and explained) than in cases where the delay is longer”:9

ina jury trial situation “the difficulty in conducting a retrial will be a major factor weighing against an extension being granted”.10

[29] The Court also noted that other factors such as the change in judicial interpretation since the time of a trial or delays in obtaining adequate competent independent legal advice may also be relevant.

[30] These decisions of the Court of Appeal with respect to the discretion to grant leave are broadly consistent with two other decisions of the High Court: Cleggs Limited v Department of Internal Affairs11 and Virendra v Police.12

[31] In Cleggs Limited v Department of Internal Affairs the Court set out the principles to be applied by the High Court on an application for leave to file an appeal out of time as follows:13

(a)That the onus is on the applicant to show special circumstances why the decisions and sentences should not stand;

(b)That the discretion is given essentially for the purpose of avoiding miscarriages of justice;

(c)That all the circumstances of the particular case should be considered in deciding whether sufficient grounds have been shown; but

(d)That one of the matters which must be established is that there is a real likelihood that an appeal would succeed if leave is granted; some

9 At [115].

10 At [118].

11      Cleggs Limited v Department of Internal Affairs HC Auckland M1032/84, 5 September 1984.

12      Virendra v Police HC Wellington CRI-2011-485-74, 27 September 2011.

13      Cleggs Limited v Department of Internal Affairs, above n 11, at 2116.

of the authorities going to the stage that the likelihood must extend to the point of establishing a probability of success.

[32] These principles were recently affirmed in Virendra v Police which added to that list the requirement for some explanation to be given as to the reasons why the appeal has been filed late.14

[33]   Finally, those Court of Appeal leave decisions were reviewed and approved in R v Slavich where the Court set out the applicable principles for an extension of time for appeals.15    The Court cited with approval the following statement from R v

Knight at 587:16

The touchstone is in the interests of justice in the  particular  case...The feature which provides the reason for the time-limit for appealing set by s 388(1) is the interests of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 388(2) to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interests of society in the finality of decisions against the interests of the individual applicant in having the conviction reviewed.

[34]    And further, the Court in Slavich said:17

It is for the appellant to provide sufficient information for the Court to determine whether it is in the interests of justice for leave to be granted: R v Davis [2007] NZCA 577 at [13]. Where the appellant fails to provide a satisfactory explanation for the delay, “the only ground...on which the delay could be overlooked is if the proposed appeal is overwhelming on the merits: R v Latifi [2007] NZCA 372 at [4].

In the simplest terms, extension of time applications will routinely reduce to two heads. Firstly, why was the appeal filed late? Secondly, what, if any merit, does the prospective appeal appear to have?

[35] Turning now to the present case, the appellant before me contended that he always wanted to appeal his conviction but during the time after his conviction, as I have noted at [11] above, his counsel, Ms Garthwaite, was heavily pregnant and he did not feel he could ask her to work on an appeal. He saw another experienced criminal barrister at that time but was told first to “take the conviction on the chin

14      Virendra v Police, above n 12, at [6].

15      R v Slavich [2008] NZCA 116 at [7].

16 At [8].

17      At [13] and [14].

and get on with life” and secondly that this barrister’s costs would be beyond his ability to pay. The appellant then says he very reluctantly accepted his conviction and the advice provided to him at the time.

[36] The appellant goes on to say that he had some problems with mental health in 2007 and 2008 and was committed under the Compulsory Treatment and Mental Health Act on two occasions around this time which impacted upon his ability to appeal.

[37] In my view, this application can be disposed of in reasonably short order. In balancing the general interests of justice here, in my judgment the leave sought by the applicant to appeal out of time must be refused. In reaching that conclusion, I take account of the following major factors: the length of time between the District Court decision on 15 May 2007 and the filing of the appeal on 26 April 2013, the strength of the appeal, and non availability of any record.

The length of time between the District Court decision on 15 May 2007 and the filing of the appeal on 26 April 2013.

[38] Here there was a considerable delay of nearly six years. This delay is simply excessive, noting in particular the comment in Lee at where the Court stated:18

The Court will be much more inclined to grant leave where the delay is short (and explained) than in cases where the delay is longer.

[39] Also, in my view there is virtually no real explanation advanced by the applicant for what is a very long delay. As I have noted above, the applicant does seem to contend that it was the recent internet news articles in February 2013 about incidences of Tongan immigrants having their criminal records deleted by Tongan authorities which has triggered the present application. The appellant contends that Mr Tuitupou was one  of  them  and  he  seems  to  be  under  the  impression  that Mr Tuitupou’s departure from New Zealand shortly before the District Court hearing on 15 May 2007 was in some way linked to the evidence he was required to give at the trial. As I have noted above, however, the charge against the appellant relating to his  assaulting  Mr  Tuitupou  did  not  proceed  and  no  evidence  was  given  by

18      R v Lee, above n 3, at [115].

Mr Tuitupou. The District Court Judge’s decision related solely to the allegation against Mr Papahadjis. It seems clear that the District Court Judge made credibility findings here and preferred the evidence of Mr Papahadjis over the evidence of the applicant.

[40]    In Lee, the Court stated:19

A long delay is a major factor weighing against leave being granted and, if unexplained, would usually be decisive.

[41] What explanation the applicant has endeavoured to give here for this long delay in my view is unconvincing. Certainly, on his own evidence he considered an appeal at the time of his conviction and sought professional advice which he “reluctantly accepted” and did not appeal. Nothing the applicant has placed before the Court since, despite his present claims of “new evidence” in my view assist his application here.

The strength of the appeal

[42]    In Lee the Court noted that:20

The merits (or lack thereof) of an appeal have been considered as a weighty factor in many cases both in New Zealand and other  comparable jurisdictions.

[43] From the information which is available to the Court, it would seem that the District Court hearing on 15 May 2007 proceeded as a normal summary hearing and the sole issue was one of credibility on which a finding was made against the appellant.

[44] The Court was required to decide between on the one hand the evidence of the security guard, Mr Papahadjis, and other information before it from staff at the hospital and, on the other, the evidence of the appellant. As noted, no evidence was given by Mr Tuitupou.

19 At [115].

20 At [108].

[45] In my view, there is nothing in the appellant’s submissions before me or any new material he has placed before the Court to indicate that a valid point of appeal exists. His  argument  that  a  credibility  issue  could  have  arisen  in  relation  to Mr Tuitupou (given his recent suggestions of a possible wiped criminal record) can only be seen as pure speculation but in any event can hardly be relevant here, given that Mr Tuitupou did not give evidence at the original trial.

[46] Next, no attempt was made by the appellant to appeal in time as, even on his own admission after obtaining independent and experienced professional legal advice, he apparently accepted his conviction (albeit reluctantly).

[47] I conclude that there is nothing which the appellant has placed before the Court to indicate that he has any valid point of appeal here.

Non availability of any record

[48] A matter of some concern as I see it here relates to the fact that the appellant now appears in his leave application to rely on the non availability of Court and other records of evidence and submissions given at the 15 May 2007 hearing as supporting factors. Noting that this appeal was filed nearly six years late and therefore exceeded the five year period on which the District Court customarily retains its records, I am satisfied it is unreasonable in the circumstances prevailing here for the appellant to raise as a ground for an appeal the fact that no record of the proceedings now exists.

[49] On this aspect in R v Amosa the Court considered the fact that there was no available record of the Judge’s summing up, noting that had the right of appeal been exercised within a reasonable time, it undoubtedly would have been available.21

[50] The Court then referred to R v Hooker22 noting that in Hooker the Court confirmed the principles earlier stated in R v Symes23 as being:24

21      R v Amosa CA328/98, 15 December 1998 at 6.

22      R v Hooker CA483/97, 8 June 1998.

23      R v Symes CA214/95. 8 November 1995.

24      R v Amosa, above n 21, at 6.

1)That the mere fact that there is no, or no adequate, record of the trial is not in itself a ground for finding a conviction unsafe or unsatisfactory;

2)That before an appellant may claim that result he or she must be able to show an irregularity at the trial or a misdirection in the summing up;

3)That “where however there is reason to suspect there is something wrong in connection with the hearing of a case, the absence or insufficiency of a proper shorthand note may be material.” (Citations omitted)

[51]     In Amosa, the Court went on to say:25

The mere inability at this time to examine the summing up critically in the hope of finding an arguable point is insufficient, and cannot possibly in our view constitute a denial or infringement of the applicant’s right of appeal.

[52] The position in this case is similar in that there is nothing to suggest that the hearing and decision in the appellant’s case was conducted other than a proper manner.

[53] Granting an appeal in the present case in my view would open the “flood gates” to any convicted person affected in the District Court where five years has passed and the records of the proceeding destroyed.

[54] Applying the Knight test as confirmed in Lee, the application here for an extension of time to appeal must fail. This is so in particular because:

There has been no attempt to appeal in time.   There is no real explanation for the delay.

Thereis no merit to the appeal. From  the information available, there appeared to be no procedural errors in what was a simple summary hearing, the only or main issue being the credibility of witnesses.

The community has a strong interest in finality after such a long period.

25      At 6.

No issue relating to the liberty of the appellant arises.

Thereis potential impact on the administration of justice if an appeal is granted in these circumstances.

[55] I find that the appellant has also failed to demonstrate some special feature or features particular to this case which will lead to the conclusion in all the circumstances justice requires that leave be given.

Conclusion

[56] For all the reasons outlined above, the appellant’s application for leave to appeal his conviction in the decision of the District Court dated 15 May 2007 is declined.

...................................................

D Gendall J

Solicitors:

Wilkinson Adams, Dunedin Copy to appellant