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…

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.

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Details

Case: [2018] NZHC 2590
Decision Date: 4 October 2018

CaseChat Overview and Summary

Michael Francis Duffy appeals his conviction and sentence for injuring with intent to injure his partner. The appeal was heard by Downs J in the High Court of New Zealand. The key legal issues addressed by the court were whether Mr Duffy was wrongly tried without a lawyer and whether the victim's hearsay statements were wrongly admitted. On the first issue, the court found that the trial judge was not wrong to proceed without a lawyer as there was a real risk of further delay due to Mr Duffy's previous breaches of bail and failure to appear. The court found the trial was fair even without legal representation because the case was straightforward and the prosecution ensured only admissible evidence was presented. On the second issue, the court found the victim's statements were properly admitted as reliable hearsay given the circumstances in which they were made. The court dismissed the appeal against conviction but allowed the appeal against sentence, substituting a sentence of 16 months' imprisonment.

The court's reasoning focused on whether the trial was fair despite the absence of legal representation and whether the victim's hearsay statements were properly admitted. The court found the trial judge's decision to proceed without a lawyer was justified given the circumstances. The court also found the victim's statements were properly admitted as reliable hearsay given the circumstances in which they were made. The court rejected arguments that the sentence was manifestly excessive, finding that a starting point of 18 months' imprisonment was more appropriate given the circumstances of the offending. The court substituted a sentence of 16 months' imprisonment, allowing the appeal against sentence but dismissing the appeal against conviction.

Orders