Duffy v Police

[2018] NZHC 2590

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000250

[2018] NZHC 2590

BETWEEN

MICHAEL FRANCIS DUFFY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

2 October 2018

Counsel:

DM George for Appellant

BR Northwood and J Lee for Respondent

Judgment:

4 October 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 4 October 2018 at 10 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

DM George, Auckland.

Crown Solicitor, Auckland.

DUFFY v POLICE [2018] NZHC 2590 [4 October 2018]

The appeal

[1]    Mr Michael Duffy was convicted of injuring with intent to injure after a Judge- alone trial before Judge B A Gibson.1 The victim was Mr Duffy’s partner. The Judge imposed a term of 19 months’ imprisonment.2 Mr Duffy appeals conviction. He contends he was wrongly tried without a lawyer, and hearsay evidence wrongly admitted.3 The victim died before trial. Her 111-call and signed scene statement were introduced as evidence. Mr Duffy also appeals sentence on the basis it is manifestly excessive.

[2]The facts are simple. And, best unveiled through the grounds of appeal.

Conviction appeal

Trial without counsel

[3]    The alleged offending occurred on 11 July 2016. Mr Duffy was charged the next day. He was tried on 14 February 2018.

[4]    Ms Amber McLean had acted for Mr Duffy, on legal aid, since October 2016. But, on the morning of trial, Ms McLean sought to withdraw. She told Judge Gibson there was “now difficulty with her instructions from the defendant”.4 Mr Duffy sought an adjournment. The Judge dismissed the application.

[5]    Ms Dana George contends the Judge was wrong to do so, and the trial unfair in the absence of legal representation. Ms George submits Mr Duffy had not manipulated the system, and reasonably assumed the trial would be adjourned with Ms McLean’s late withdrawal. Ms George notes Mr Duffy told the Judge he had left papers relevant to the case at home, and was not ready to begin.5

1      R v Duffy [2018] NZDC 2809.

2      R v Duffy [2018] NZDC 16252.

3      The Judge’s verdict is also challenged as unreasonable.

4      R v Duffy, above n 1, at [6].

5      The transcript confirms this.

[6]    Recitation of applicable law need not extend beyond the Supreme Court’s decision in R v Condon.6 That Court held if a defendant is wrongly tried without a lawyer, a presumption of a miscarriage of justice arises. That Court also held it is not open to the defendant to assert the right to counsel but then, by conduct, repudiate that right’s exercise, or by similar conduct, create a situation “in which, on a proper balancing of various interests, further delay in the holding of the trial is not to be tolerated”.7 Consequently, an appellate Court “must make a determination concerning the circumstances in which the [defendant] came to be tried without a lawyer”.8 If the defendant was wrongly tried without one, the prosecution must satisfy the Court the trial was fair despite the absence of representation. Otherwise, no such presumption arises.

[7]    I accept Ms George’s submission Mr Duffy was not seeking to manipulate the process by seeking an adjournment. However, I conclude the Judge was not wrong to proceed for the reasons he gave, and other considerations implicit to that decision.

[8]    The charge was already 18 months old. Two witnesses had died since the alleged event: the victim and a doctor who had treated her. Mr Duffy’s late instructions had caused Ms McLean to withdraw. The charge was not complex. Nor were related circumstances. Most importantly, adjournment risked further delay. Mr Duffy had:

(a)Breached bail five times (on 18 July 2016; 6 October 2016; 27 October 2016; 6 February 2017; and 3 May 2017).

(b)Failed to appear  on  three  occasions.  First,  on  16  August  2016; Mr Duffy  was   arrested   on   21   September   2016.   Second,   on 25 November 2016; Mr Duffy was arrested on 20 December 2016. Third, on 6 March 2017; Mr Duffy was arrested on 1 April 2017.

[9]    Ms George observes Mr Duffy last failed to appear on 6 March 2017. However, there were then only a handful of appearances until trial, and Mr Duffy

6      R v Condon [2006] NZSC 62, [2007] 1 NZLR 300.

7 At [80].

8 At [81].

breached bail on 3 May 2017. It was open to the Judge to conclude there was a real risk Mr Duffy may again fail to appear, and in doing so, cause more delay.

[10]   This conclusion is not affected by the brief affidavit Mr Duffy filed last week, reception of which is unopposed by  Police.  Mr Duffy says his relationship with   Ms McLean had not broken down. This observation is inconsistent with Ms Mclean’s advice to the District Court.9 And, Mr Duffy has not waived privilege. Mr Duffy also says he had “at least one witness he wished to call”. The affidavit does not identify the proposed witness, or the subject matter of their proposed evidence. Mr Duffy also says he had documents at home which he needed. The affidavit does not append these, or identify what they were. The same is true of Mr Duffy’s observation he “had a lot of information about the reliability of the complainant to put before the Court”. It is not open to a litigant to assert prejudice through inability to offer evidence without even identifying what that evidence is.10

[11]   In any event, I am satisfied the trial was fair even though Mr Duffy did not have counsel.

[12]   The case was straight-forward. The prosecution alleged Mr Duffy repeatedly punched the victim in the head, breaking her nose. There were no eye-witnesses, albeit Police were on the scene within (five) minutes. Mr Duffy was there. So too the victim. Her face was covered in blood. She was still on the telephone to Police. Mr Duffy’s case was that he was asleep, and the victim must have fallen while intoxicated. There was evidence she and he had been drinking. Such simplicity meant the assistance of counsel was not a necessary incident of a fair trial. Relatedly, the only difficult aspect—admissibility of the victim’s statements—was dealt with on a pre-trial basis, and when Mr Duffy had representation.

[13]   The system operated as it should with an unrepresented defendant. The prosecutor took care to ensure only admissible evidence was adduced. For example, when Mr Duffy testified and volunteered he had a conviction for assaulting the victim,

9      Ms McLean foreshadowed her application to withdraw in a brief email to the Court the night before trial, saying there had been “a breakdown in the lawyer-client relationship”.

10     R v Hirchkop CA506/05, 6 July 2006.

Mr Northwood informed the Judge this evidence was inadmissible. The Judge agreed. Similarly, the Judge assisted Mr Duffy in his cross-examination of medical witnesses, and when Mr Duffy testified, adduced much of his evidence-in-chief.

[14] The only obvious defence evidence that could have been adduced was adduced. Mr Duffy testified. Materially, Ms George has not identified, nor sought to introduce, evidence allegedly missing from trial; see [10]. And, the prosecution case was very strong, a point that will become apparent shortly.

[15]   Ms George observes Mr Duffy is middle-aged, but not a well-educated professional. I agree. However, Mr Duffy stated his case to the Judge clearly. The transcript implies Mr Duffy is more articulate than many defendants in this context.

[16]   The one blemish concerns Mr  Duffy’s  election.  The  Judge  explained  to Mr Duffy he may give evidence, but was not required to. And, the Judge explained Mr Duffy would be cross-examined if he did. However, Mr Duffy was not given a short adjournment to consider his election. As Mr Duffy was self-represented, it would have been better if he had been given time to decide, say, 15 minutes. However, when the Judge asked Mr Duffy what he wanted to do, he replied immediately, saying he wanted to give evidence. The blemish is only that. Again, the trial was fair.

Wrongful admission of the victim’s statements?

[17]   When a witness is unavailable at trial—as the victim was—her or his evidence is admissible if the circumstances relating to its taking provide reasonable assurance of its reliability, and the probative value of the evidence outweighs its prejudicial effect.11

[18]   Before trial, Judge S F Fleming ruled the victim’s 111-call and signed Police statement, which was made at the scene, admissible on this basis.12 Ms George contends this evidence should not have been admitted: the victim had been drinking; her evidence was central; and Mr Duffy prejudiced through inability to cross-examine.

11     Evidence Act 2006, ss 8 and 18.

12     R v Duffy [2017] NZDC 17992.

[19]   The 111-call and signed statement were consistent with each other. Each described a sustained attack by Mr Duffy, involving repeated punches to the face. The victim’s bloodied presentation was consistent with an assault; so too blood spots by the back door (which is how she described leaving the house); and the victim’s injuries. She sustained a broken nose, minor swelling to the back of the head, bleeding in or about an eye socket, a minor cut to the back of her wrist, and bruising to the hand. All this was evident to Police within minutes of the alleged assault. The victim signed her statement while they were still at the scene, after confirming its accuracy and truth. So, the circumstances relating to the taking of the evidence provide reasonable assurance of its reliability, and it was of high probative value.

[20]   These conclusions are not affected by the fact the victim had been drinking. She made this clear to the Police in her statement, and was coherent in her emergency call.13

[21]   As to prejudice, doubt attaches to what could have been achieved through cross-examination beyond that achieved at trial. A doctor accepted the victim’s injuries to the hand and wrist could have been caused by a fall, a concession consistent with Mr Duffy’s case. Mr Duffy highlighted the victim’s consumption of alcohol, and established her nose could have been broken earlier (through inability to precisely date the injury). However, there is no reason to believe the victim would have resiled from her account, or otherwise accepted the defence case.

[22]   Ms George submits Mr Duffy would have questioned the victim about previous calls by her to Police, and alleged failures by her to prosecute complaints. This submission lacks evidential foundation, as there is no evidence the victim had withdrawn or failed to pursue previous Police complaints. In any event, the dangers of this strategy are obvious in the context of alleged domestic violence, particularly as Mr Duffy had been convicted of an earlier assault on the victim.

[23]   In short, this was a clear case for admission of the victim’s statements as reliable hearsay. The emergency call was an integral part of events, and the victim’s

13     A blood specimen revealed the victim was three times over the limit. However, the doctor said it did not necessarily follow she was intoxicated.

statement taken in their immediate aftermath. Each supported the other. Police were on the scene within minutes. Like the Judge who determined the pre-trial application, I am satisfied this evidence was admissible even though the victim was unavailable.

An unreasonable verdict?

[24]   Ms George contends the Judge erred in his assessment of the evidence to such an extent a miscarriage of justice has occurred.14 Ms George argues the defence thesis of a fall ought to have caused the Judge to have a reasonable doubt about guilt.

[25]   The submission overlooks the evidence of the victim, which the Judge was entitled to accept. Once accepted, a guilty verdict was inevitable. The victim described a serious assault by Mr Duffy, consistent with an intention to cause bodily harm.

Sentence appeal

[26]   The Judge considered Mr Duffy had engaged in “serious violence”,15 within band two of Nuku v R.16 The Judge identified several aggravating factors: an attack to the head; serious injury; and victim vulnerability. The Judge also identified “premeditation” as a possible aggravating factor.

[27]   The Judge adopted a starting point of 21 months’ imprisonment, uplifted by one month for Mr Duffy’s earlier assault on the complainant. The Judge discounted the sentence by three months in recognition of Mr Duffy’s “general health condition, and other factors mentioned in the pre-sentence report”.

[28]   Ms George submits the sentence is manifestly excessive for a host of reasons. It is sufficient to refer to one.

14     Criminal Procedure Act 2011, s 232(2)(b).

15     R v Duffy, above n 2, at [3].

16     Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

[29]   The evidence does not support the proposition the offending was premeditated. Police accept as much. Relatedly, the starting point appears inconsistent with authority.17

[30]   In Tonihi v Police,18 the defendant injured his partner with intent to injure: he fractured two of her teeth, gave her two black eyes, other “mild” facial bruising,19 and left her with a suspected broken nose. As in this case, the victim had been drinking. The High Court concluded a starting point of two years and two months was manifestly excessive. An 18-month starting point was adopted.

[31]   In B v Police,20 the defendant injured his partner: he pushed her to the floor, threw her down two sets of stairs, dragged her into the kitchen, repeatedly punched her to the face, applied pressure to her throat (so she could not breathe), and then punched her in the buttocks. Her injuries were like the victim’s in Tonihi. It was common ground the starting point ought to have approached two years’ imprisonment. Plainly, B’s offending is more serious than Mr Duffy’s.

[32]   These cases suggest the starting point ought to have been 18 months’ imprisonment, not 21 months’ imprisonment. Applying the same uplift and deductions as the Judge produces a sentence of 16 months’ imprisonment.

Result

[33]   The sentence appeal is allowed. The substituted sentence is 16 months’ imprisonment. Mr Duffy still has leave to apply for home detention.

[34]The conviction appeal is dismissed.

……………………………..

Downs J

17     Neither party cited any sentencing cases. Those above pre-date Nuku, but nothing turns on this.

18     Tonihi v Police [2013] NZHC 737.

19 At [1].

20     B v Police HC Hamilton CRI-2009-470-01, 16 February 2009.