French v Police - [2020] NZCA 175

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA540/2019
[2020] NZCA 175

BETWEEN	ROBERT WAYNE FRENCH Appellant
AND	NEW ZEALAND POLICE Respondent

Court:	Courtney, Ellis and Brewer JJ
Counsel:	J C Harder for Appellant J E Mildenhall for Respondent
Judgment: (On the papers)	21 May 2020 at 10 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

In October 2018 Robert French was convicted following a Judge alone trial before Judge Harding on charges of common assault and behaving in a threatening manner.[1] On the charge of assault he was convicted and ordered to pay emotional harm reparation of $100 and court costs of $130. On the charge of intimidation he was convicted and ordered to come up for sentence if called upon within six months.[2]
[1]Police v French [2018] NZDC 27329.
[2]Police v French [2018] NZDC 27466.
Mr French appealed his conviction and sentence. He was dilatory in prosecuting the appeal and did not appear on the date eventually allocated for the hearing of the appeal in the High Court, 19 September 2019. After considering the history of the appeal, Venning J proceeded to determine that matter and dismissed the appeal.[3] Mr French seeks leave to bring a second appeal against conviction only.[4]
[3]French v Police [2019] NZHC 2382.
[4]Criminal Procedure Act 2011, s 237.
The threshold for leave to bring a second appeal is high. Under s 237(2) of the Criminal Procedure Act 2011, this Court must not grant leave for a second appeal against conviction unless satisfied either that the appeal involves a matter of general or public importance,[5] or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.
[5]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].
In this case it is accepted that there is no matter of general or public importance arising from the proposed appeal. The application is advanced on the basis that a miscarriage of justice may have occurred. A miscarriage of justice is something which has gone wrong and which was capable of affecting the result of the trial.[6] Mr French says that there may have been a miscarriage of justice because the CCTV footage that captured part of the incident giving rise to the charges was not available at the trial.

The trial in the District Court

The offending

[6]R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [31].

The circumstances of the offending, as found by the Judge, were as follows. Mr French approached the complainant, Mr Raine, in a shop. Mr Raine was with his wife and teenage son. Mr Raine put out his hand to shake Mr French’s hand. Mr French grabbed Mr Raine’s hand and accused him of stealing a trailer from him some years previously. Mr French pushed Mr Raine out of the…

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: [2020] NZCA 175
Decision Date: 21 May 2020 at 10 am

CaseChat Overview and Summary

The appellant, Robert French, sought leave to bring a second appeal against his conviction of common assault and threatening behaviour. The application was dismissed by Venning J, who declined to grant leave for a second appeal. The Court of Appeal, consisting of Courtney, Ellis, and Brewer JJ, was required to determine whether the application for leave to bring a second appeal should be granted. The appeal was advanced on the basis that a miscarriage of justice may have occurred because the CCTV footage that captured part of the incident giving rise to the charges was not available at the trial. The Court of Appeal found that there was no basis for a finding of bad faith on the part of the police in failing to secure the CCTV footage. Additionally, there was no basis on which to conclude that the footage would, in fact, have been helpful to Mr French in establishing a reasonable doubt. Given the Judge’s acceptance of Mr Raine’s account and that of his wife and the fact that the constable said that the footage showed an assault and that his actions immediately afterwards were consistent with that, there was no reasonable possibility of a different outcome.

The Court of Appeal declined the application for leave to bring a second appeal. The Court found that the application fails by a significant margin to meet the threshold needed for a second appeal.

Orders