French v Police
[2020] NZCA 175
•21 May 2020 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA540/2019 [2020] NZCA 175 |
| BETWEEN | ROBERT WAYNE FRENCH |
| AND | NEW ZEALAND POLICE |
| Court: | Courtney, Ellis and Brewer JJ |
Counsel: | J C Harder for Appellant |
Judgment: | 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 shop. Outside the shop Mr French pushed Mr Raine in the chest and made a threatening gesture of drawing his finger across his throat and threatened to shoot him.
Ms Carter was sufficiently concerned about Mr French’s agitated state that she called the police. The police also described Mr French as being initially agitated before calming down. The police took a photograph of a small abrasion on Mr Raine’s hand, said to have been caused when Mr French grabbed the hand.
The police also checked the CCTV footage from the shop. After viewing the CCTV footage Mr French was arrested.
The CCTV footage
The store manager uploaded a copy of the CCTV footage onto a police device but it was not provided to Mr French during discovery. In June 2018, at Mr French’s appearance for plea, the police were directed to disclose the CCTV footage. That was never done.
At a pre-trial hearing in August 2018 Judge Bergseng issued a minute regarding the delays in disclosure by the police and directing that the police either disclose a viewable copy of the CCTV footage, failing which “they are prevented from relying on that evidence at the Judge alone trial”.[7]
[7]Police v French DC Manukau CRI-2018-092-3485, 7 August 2018 at [4].
The footage was never produced.[8] The trial Judge referred to it in his decision:[9]
It is unfortunate that the CCTV footage, whatever it showed, was not available so as to enable Mr French to see it, but evidence which might have been made available to a Court and which is not produced is simply irrelevant to a judicial determination and the Court is required to make a determination on the facts which are put before it.
The Judge alone trial
[8]The Crown submissions on appeal contain an explanation to the effect that once the police had converted the footage into a viewable format they discovered that it was from the wrong time of day and did not cover the relevant period. The original footage viewed by the police on the day was no longer available because it had since been overwritten.
[9]Police v French, above n 1, at [17].
Mr French was unrepresented at trial. He gave evidence. The Judge summarised his account as follows:[10]
[14] …He acknowledged having been at the store, said that he saw Constable Renton and the others and approached them about the theft. It was his version that he was asked to take matters outside and that he walked outside with the others following. The checkout operator came out and he gave her $4 he had had in his hand and a packet of tea that he was going to buy and she returned to the store, inferentially rang it up and came back with the tea and possibly some change.
[15] Mr French’s evidence was that Mr Raine said he still had the trailer and somebody said it could be collected, and that from Mr French’s perspective he enquired as to the address and found that that had changed and then went into the store to get a pen to write the new address down to do that. He said that when he returned Mr Raine said that he, Mr French, was not having the trailer back, said that Mr French had been threatening him and that the police would be called. In due course the police were called and arrived.
[16] Mr French in his evidence-in-chief made no reference to physical contact and was concerned about his treatment by the police substantially after the events and after his arrest. In cross-examination he denied speaking loudly to Mr Raine and his wife or abusing them. He denied grabbing and not letting go Mr Raine and said that he simply walked outside with them following. It was his evidence and view that he had not seen the CCTV footage because the incident did not happen and that the officers conspired to unlawfully arrest him. …
[10]At [14][16].
The Judge ascribed little weight to the abrasion on Mr Raine’s hand. Overall he preferred the account given by Mr Raine and Ms Carter, whom he found to be straightforward witnesses. He acknowledged that there was not “complete unanimity” between Mr Raine and Ms Carter as to how Mr French had got outside; Mr Raine described being pushed whilst his wife, Ms Carter, described him being dragged.[11] But the Judge was satisfied that Mr French had forced Mr Raine outside.
The first appeal
[11]At [10].
Although Mr French filed his appeal promptly following his conviction he was slow to prosecute it. After several adjournments the matter was set down for hearing on 19 September 2019. Mr French did not appear.
Venning J reviewed the procedural history of the appeal which can be broadly summarised as follows:
(a)On 27 March 2019 Mr French’s counsel was granted leave to withdraw.
(b)After a number of adjournments at pre-hearing conferences a fixture was allocated for 10 June 2019. That fixture was adjourned to 9 July 2019 at Mr French’s request.
(c)The 9 July fixture was adjourned at Mr French’s request. A new date was allocated of 19 August 2019 and Mr French was directed to file submissions by 5 August 2019.
(d)Mr French failed to file submissions as required. On 15 August time for filing submissions was extended and the 19 August 2019 fixture confirmed, with a direction by Whata J that it proceed regardless of whether the submissions had been filed.
(e)On 16 August 2019 Mr French filed an application for adjournment of the fixture. On 19 August 2019 there was a telephone conference before Davison J. The Judge noted that Mr French had sought a three‑month adjournment because of illness and directed that he file a memorandum with a detailed medical certificate by 2 September 2019.
(f)Mr French failed to file the medical certificate as required. He failed to respond to a telephone conference convened for 6 September 2019.
(g)The appeal was set down for hearing on 19 September 2019. Directions that the appeal would proceed in Mr French’s absence if he did not appear were sent to him.
(h)On 13 September 2019 Mr French emailed a medical certificate (dated 2 September 2019) to the Court. It contained no details of Mr French’s illness, merely stating the he “is medically unfit for court appearance from 2 September 2019”, that he was expected to improve and would be reassessed again in six weeks.
(i)Mr French was advised that the medical certificate was inadequate as the basis for an adjournment and that the appeal hearing would proceed as scheduled, if necessary on the papers in the event Mr French did not appear.
(j)Mr French sought a further adjournment and requested the audio transcript of the District Court hearings.
In these circumstances Venning J concluded that:[12]
… It is not in the interests of justice overall for this appeal to remain before the Court and remain undetermined. Mr French has had ample opportunity to present his case and to make his submissions. The application for adjournment is declined.
[12]French v Police, above n 3, at [13].
Venning J then reviewed the facts as they had been found in the District Court and the account that Mr French had given in the District Court. He referred to the issue of the CCTV footage and to the way in which the District Court Judge had dealt with it. Venning J concluded that:[13]
Essentially the prosecution against Mr French was determined by the Judge preferring the evidence of Mr Raine and his partner Ms Carter as to the incident involving Mr Raine and Mr French to that of Mr French.
…
The Judge’s conclusion that the charges were proved beyond reasonable doubt on the basis of the evidence before him was clearly open to him on the evidence. There is nothing in the material before this Court on appeal or anything in the material that Mr French has submitted to the Court which affects validity of that finding.
Application for second appeal
[13]At [28] and [32].
Mr French’s complaint is that the failure of the police to produce the CCTV footage was a breach of ss 13, 14 and/or 30 of the Criminal Disclosure Act 2008 and that, as a result of the police not securing and disclosing the footage, his fair trial rights were breached. The fact that evidence is not available at trial will not necessarily render a trail unfair but there may be circumstances in which it does have that effect. The issue was considered by this Court in R v Harmer, an appeal against a murder conviction in which the complaint was that physical evidence relating to the crime scene had been destroyed. [14] The Court summarised the circumstances in which the lack of evidence might lead to an unfair trial:
[91] In our view there are two relevant considerations, namely whether the evidence has been lost because of acts or omissions by the police involving bad faith, and whether it is probable that the lost evidence would have been of real assistance to the defence in the circumstances of the particular case. The emphasis, we consider, should be upon the need for a showing by the accused or convicted person that it is more probable than not that the lost evidence would have been of real benefit to the defence because it would have created or contributed to creating a reasonable doubt. That is after all the fundamental question. The characterisation of the conduct of the police in this regard will not be determinative save that, if it appears that they were motivated by a desire to avoid having the evidence before the court or otherwise acted in bad faith, it may readily be inferred that the evidence would have been helpful to the defence. But, in the absence of such deliberate conduct or other bad faith by the police – which is the position in this case – the concern should be with the effect on the defence of the absence of the evidentiary material rather than with whether the plaintiff have been negligent. The particular significance of the missing evidence to the defence will necessarily have to be considered in light of all the available evidence. When, as here, the issue arises on an appeal from a conviction the ultimate question will be whether the unavailability of the evidence to the defence appears to have given rise to a miscarriage of justice.
[14]R v Harmer CA324/02, 26 June 2003.
Harmer was applied in Beattie v Police, a case with some factual similarities to the present case.[15] In Beattie the appellant appealed successfully against his conviction for assaulting a female. Mr Beattie was alleged to have rubbed the shoulder and arm of a teenage girl sitting with her mother outside a takeaway bar. The evidence against him came from the complainant and her mother. After being arrested, and on the way back to the police station a police officer referred to the fact that there was CCTV covering the street. However, the footage was never obtained and by the time of trial was unavailable. In cross-examination the officer said that he had viewed that footage briefly to confirm that the defendant was the correct person and had not seen any assault.
[15]Beattie v Police [2013] NZHC 1781.
The Court considered that there was no basis for a finding of bad faith on the part of the police in failing to obtain the footage because the officer had never been asked why he did not secure the CCTV footage. Nor could Mr Beattie show that, more probably than not, the footage would have been of real benefit to him in creating a reasonable doubt. But the Court did see as relevant, and helpful to Mr Beattie, the fact that the officer had not seen any physical contact between Mr Beattie and the complainant during his brief viewing of the footage. Given the low level of seriousness of the offending and the disproportionate time that matter had taken up, the Court declined to remit the matter to the District Court for consideration of the bad faith issue and simply quashed the appeal.
This case is different from Beattie in a significant way. Unlike Beattie, the officer claimed to have seen the assault when he viewed the footage at the shop. In his evidence-in-chief, Constable Renton described attending the scene and having a staff member of shop play the CCTV footage to him. When asked what he had done as a result of viewing the footage, he said:
I spoke with Mr French and I put it to him that I’d reviewed the CCTV footage and could see that an assault had taken place…
Not only is there is no basis on which to conclude that there was bad faith on the part of the police in not securing the CCTV footage, there no basis on which to conclude that the footage would, in fact, have been helpful to Mr French in establishing a reasonable doubt. It can reasonably be assumed that at any retrial Constable Renton would give the same evidence. 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 as assault and that his actions immediately afterwards were consistent with that, there is no reasonable possibility of a different outcome.
Result
The application fails by a significant margin to meet the threshold needed for a second appeal. The application for leave to appeal is accordingly declined.
Solicitors:
Crown Law Office, Wellington for Respondent
3
0