French v Police - [2019] NZHC 2382

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-367

[2019] NZHC 2382

BETWEEN
ROBERT WAYNE FRENCH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 September 2019

Appearances:

No appearance for or on behalf of Appellant M Regan for Respondent

Judgment:

19 September 2019

JUDGMENT OF VENNING J

Solicitors: Kayes Fletcher Walker, Auckland Copy to: Respondent

FRENCH v NEW ZEALAND POLICE [2019] NZHC 2382 [19 September 2019]

[1] On 31 October 2018 the appellant Mr French was convicted of one charge of assault under the Summary Offences Act 1981 and one charge of behaving in a threatening manner. He was ordered to pay restitution of $100, pay Court costs and to come up for sentence if called upon within six months.

[2] On 19 November 2018 Mr French appealed to this Court from the conviction and sentence. Mr French’s appeal has been called in Court this afternoon for a substantive hearing. There is no appearance by Mr French or on his behalf.

[3] The appeal has been listed for call before the Court on a number of previous occasions. Previous fixtures allocated for the hearing of the appeal have been vacated. Mr French was previously represented by counsel. On 27 March 2019 counsel was granted leave to withdraw. After a number of adjournments at pre-hearing conferences a fixture was allocated for 10 June 2019. That fixture was adjourned and rescheduled to 9 July 2019. That 9 July fixture was also adjourned at Mr French’s request. Justice Lang then set the appeal down for hearing on 19 August 2019 and made timetable orders directing Mr French to file and serve submissions by 5 August. Mr French failed to file submissions in accordance with the timetable. On 15 August Whata J amended the timetable and extended the time for Mr French to file his submissions to 15 August. He confirmed the fixture for 19 August 2019 at 2.15 pm and noted:

That fixture is confirmed irrelevant of whether submissions are filed on time. However, failure to file submissions in advance may provide strong reasons to dismiss the appeal.

[4] Late on the afternoon of 16 August Mr French filed an application for adjournment. On 19 August 2019 at a telephone conference before Davison J the Judge noted that Mr French had sought an adjournment of the fixture for three months to recover from an illness. Justice Davison directed Mr French to file and serve a memorandum attaching a detailed medical certificate by 5.00 pm, 2 September 2019. The Judge allocated a review conference at 9.00 am on 6 September 2019.

[5] Mr French failed to comply with the direction of Davison J to file a detailed medical certificate by 5.00 pm, 2 September. He has failed to comply with the previous directions of the Court as well.

[6] When the Registrar sought to contact Mr French on Thursday, 5 September 2019 to confirm the telephone conference at 9.00 am the next day Mr…

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: [2019] NZHC 2382
Decision Date: 19 September 2019

CaseChat Overview and Summary

Robert Wayne French appealed against his conviction and sentence for assault and behaving in a threatening manner, but he did not appear or make any submissions in support of his appeal. The Court was required to determine whether to proceed with the appeal in his absence or dismiss it for non-compliance with the Court's directions. The Court found that Mr French had ample opportunity to present his case and make his submissions, but he had failed to comply with several directions of the Court, including a direction to file a detailed medical certificate and to file submissions in accordance with the timetable. The medical certificate that Mr French provided was inadequate as it did not address his present medical condition and health or why he was unable to attend Court. The Court concluded that it was not in the interests of justice to adjourn the appeal further and that the appeal should be dismissed. The Court found that the Judge's conclusion that the charges were proved beyond reasonable doubt on the evidence before him was clearly open to him on the evidence. The appeal was dismissed.

The Court ordered that the appeal be dismissed and that the conviction and sentence stand. The Court also ordered that the Registrar send a copy of the judgment to the respondent and to Mr French.

Orders