Duberly v Police

[2013] NZHC 2510

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2013-418-000001 [2013] NZHC 2510

BETWEEN	JOHN GEORGE EDWARD DUBERLY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	25 September 2013  (At Dunedin and Christchurch via AVL)
Appearances:	C Savage for Appellant AMS Williams for Respondent
Judgment:	25 September 2013

ORAL JUDGMENT OF D GENDALL J

[1]      The appellant, Mr Duberly, was charged with two counts of male assaults female under s 194(b) of the Crimes Act 1961 relating to two separate incidents involving his partner at the time.

[2]      On 10 December 2012 His Honour Judge Garland in the District Court at Greymouth convicted the appellant of one charge of male assaults female following a defended hearing.  The accused was represented at this hearing and gave evidence. At the conclusion of the evidence he entered a plea of guilty to the one charge of male assaults female. A second information, No. 12018000499 was withdrawn.

[3]      In the District Court His Honour Judge Garland made an order for reparation for the sum of $500 on account of emotional harm caused to the victim and imposed a sentence of nine months supervision.

[4]      The appellant now appeals against conviction and advances three grounds in his notice of appeal:

DUBERLY v NEW ZEALAND POLICE [2013] NZHC 2510 [25 September 2013]

(a)       that he was not afforded sufficient time to fully instruct his counsel

(Mr Linder); and

(b)      that he was unable to put his case before the District Court; and

(c)       that he was unable to contest the prosecution case.

[5]      This appeal was originally to be heard on 25 July 2013 which date was subsequently vacated and a new appeal date set for 15 August 2013.   Previous counsel acting for the appellant, Mr Bodle, sought a further adjournment in August

2013 indicating that he had been unable to receive adequate instructions.  In addition he sought leave to withdraw which was granted.

[6]      Mr Savage of the Public Defence Service was then assigned to act for the appellant with respect to this appeal and appeared before me today.

[7]      At the outset today Mr Savage indicated that he was not in a position to advance matters relating to this appeal as the appellant had been out of contact for some time and he had not received recent instructions.

[8]      Mr Savage did state, however, that it was quite clear from earlier indications provided to him that the issue before the Court on  this appeal was  simply the question whether the appellant was unable to instruct counsel in a proper manner for the original hearing and thus questions concerning proper access to justice arose.

[9]      The brief facts of this offending should be noted.  The appellant lived with the victim, his partner. On 27 April 2012 it appears they argued about the location of a television remote control.   He grabbed her, lifting her feet off the ground, and threw her out of the bedroom door.  She fell on the floor, spilt the coffee she was holding and grazed her knee.

[10]     The appellant it is said then picked her up and pushed her into a chair where he held her.  She put her legs up to push him away but he kicked her leg near her shin.

[11]     The appellant then grabbed her from the chair and tried to drag her towards a bedroom.  The victim struggled but he dragged her into the bedroom and shut the door.  She opened a window and screamed to try to attract the neighbours’ attention. The appellant is then said to have dragged her away from the window three times until finally she gave up.  She then pleaded with him several times to let her out of the bedroom before he finally did so.  In addition to the grazed knee, the victim also suffered numerous bruises to her upper arms, legs and face.

[12]     The appellant is a 50 year old man – he was 49 at the time of sentencing. The sentencing notes indicate that he has not previously appeared before the Court and there is no criminal history on the file.  In the District Court, Judge Garland began by congratulating the appellant for accepting responsibility for his actions with his guilty plea.

[13]     The Judge then described the offending and accepted the appellant’s evidence that he was trying to “settle his partner down”.   He described the offending as “a lower level domestic incident”.

[14]     Noting that the appellant had never appeared in Court before and that he had responsibly begun some anger management counselling and was also, it seems, endeavouring to deal with his mental health issues, the District Court Judge determined that the appropriate outcome was nine months supervision with special conditions requiring counselling as directed by the probation officer.  Judge Garland characterised this as “imposing Court oversight in relation to what you are already doing”.

[15]     Due to the trauma caused to the victim the District Court Judge considered it appropriate for the appellant to make compensation for the emotional harm and ordered him to pay $500 reparation to the victim.

[16]     It is clear from the record of the District Court proceeding that the appellant did give evidence before the District Court.  His counsel at the time, Mr Linder, then cross-examined the victim about the nature of  the relationship and whether the victim and the appellant had many volatile arguments.   Mr Linder then put the

appellant’s explanation of events to the victim.  The appellant also had given his version of events – see page 33 onwards of the notes of evidence.

[17]     As to the issue of whether the appellant had sufficient time to fully instruct his solicitor here, it is clear that the Legal Services Agency made a grant of aid to the appellant on 16 November 2012.  Mr Linder I am told has confirmed the receipt of the assignment around that date and that his opportunity to take instructions was limited to a telephone call the day prior to the defended hearing and a brief meeting on the morning of the 10 December 2012 defended hearing.

[18]     As I have noted, those aspects were and still are the basis of the present appeal.

[19]     On all these matters I note the following:

(a)       The  appellant  was   represented  by  counsel   at   the  hearing  on

10 December 2012.

(b)      The appellant entered a plea of guilty.

(c)      Prior to the appellant entering the plea of guilty the complainant gave evidence and was cross-examined.

(d)Also, prior to the appellant entering his guilty plea, he gave evidence in support of his case.

(e)      Following the grant of aid on 16 November 2012 the appellant and his appointed counsel, Mr Linder, would have had almost one month to liaise and prepare matters for the hearing.

(f)       In my view, the fact that Mr Linder was able to lead evidence from the appellant  and  to  cross-examine  the  complainant  would  seem  to suggest that he had a reasonable knowledge of the appellant’s version of events here.

[20]     In R v Le Page1 the Court of Appeal stated:

It is only in exceptional circumstances that an appeal against conviction will be entertained following entry of the 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.

[21]     In this case, I am satisfied that this appeal must fail.  There is nothing before the Court to indicate that the appellant did not appreciate the nature of, or did not intend to plead guilty to, the particular charge in question here.   Nor is there any suggestion here that his plea was induced by a ruling which embodied a wrong decision on a question of law or on admitted facts that meant the appellant could not in law have been convicted of the offence charged.

[22]     The appellant has placed nothing before the Court to indicate that he has been a victim of a miscarriage of justice here.  For all these reasons I am of the view that this appeal must be dismissed.

[23]     The appeal is dismissed.

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

D Gendall J

Solicitors:

Campbell Savage, Dunedin

Raymond Donnelly & Co, Christchurch

1      R v Le Page [2005] 2 NZLR 845.