French v Police
[2019] NZHC 2382
•19 September 2019
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 French advised the Registrar that he required matters to be put in writing and then hung up.
[7] The Court convened a telephone conference at 9.00 am on 6 September. Mr Regan appeared for the Police. Mr French’s number was called. There was no response. The phone was not picked up.
[8] The Court set the appeal down for hearing at 2.15 pm today. The Court recorded it seemed pointless to make further directions to require Mr French to file and serve submissions. The Court directed that in the event Mr French did not appear today the Court would deal with the appeal in his absence and that his appeal would be dealt with on 19 September at 2.15 pm. A copy of that minute and the directions were sent to Mr French.
[9] Mr French subsequently arranged for a doctor, Dr Doering, to send an email to the Court attaching a medical certificate. The email was dated 13 September at
2.15 pm. The certificate is itself dated 2 September. The medical certificate simply states:
The above patient was seen and examined by me on 02 September 2019 and in my opinion he is medically unfit for court appearance from 02 September 2019.
It is expected that Robert will improve.
He will be reassessed again in 6 weeks regarding his fitness for court appearance.
[10] The Court responded to that email with a further minute dated 13 September 2019. That minute noted:
[3] That very general opinion is entirely unsatisfactory and is inadequate as a basis for a further adjournment of Mr French’s long delayed appeal.
[4] If Mr French does not appear on Thursday, 19 September at 2.15 pm or arrange an appearance on his behalf the Court will determine the appeal on the papers.
[11] The medical certificate proffered by Mr French did not comply with Davison J’s directions that it address and describe Mr French’s present medical
condition and health. It also did not address why Mr French was apparently able to attend a doctor in Titirangi but could not attend Court. Nor did it address the issue of when Mr French might be able to attend Court.
[12] In response to the minute from the Court confirming the fixture would proceed today Mr French then sent a further document to the Court styled as a second affidavit. In that he sought a further adjournment and also sought a copy of the hard disk of the audio transcripts of previous hearings in the District Court. As noted, Mr French has not appeared this afternoon to support his appeal. Mr Regan for the Police opposes any further adjournment.
[13] Given the background to this case and the matters described above I am not minded to adjourn this case further. 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.
[14] I turn to the background facts relating to the offending of which Mr French was convicted. I take them from the decision of Judge C J Harding of 31 October following the hearing in the District Court at Manukau on 31 October 2018.1
[15] At a little before one in the afternoon of 27 March 2018 the complainant, Mr Raine, was in a Manukau shop with his wife and 14 year old son when Mr French saw him. Mr French went up to him. Mr French was of the view that Mr Raine had stolen a trailer from him about 15 years ago.
[16] Mr Raine’s evidence was that he put out his hand to shake Mr French’s hand, he having known Mr French through his father for 20 or 25 years, but that Mr French grabbed his hand and accused him of stealing the trailer and began to swear at him. Mr Raine said that when he asked what this was about Mr French effectively pushed him outside, refusing to let go of his hand, and outside he was pushed in the chest and threatened by Mr French with Mr French refusing to let his hand go. Mr Raine’s evidence was that some skin was torn off his hand in the process.
1 New Zealand Police v French [2018] NZDC 27329.
[17] Mr Raine also described Mr French as putting his finger to his throat, drawing it across and said that Mr French threatened to shoot him, to the point where he felt very uneasy and felt that things had escalated to quite a bad position. He described Mr French as right in his face, pushing his chest with his hands and the longer it went on the worse he felt about how it would end.
[18] Mr Raine’s version was substantially supported by his wife, June Carter, who was there at the time. She described Mr French grabbing Mr Raine’s hand and dragging him out of the shop accusing him of stealing his trailer. She recalled him saying that he should just kill him and says that Mr French was at the time shaking with anger and pushing her husband in the chest with his finger several times. She called 111, which led to the police arriving.
[19] Constable Renton and Constable Graham attended the scene. Constable Renton described Mr French as being agitated. Constable Graham spoke to Mr French, who declined to sign the Constable’s notes. While acknowledging that he remonstrated with Mr Raine about the theft of the trailer, Mr French declined to make any further material comment.
[20] Constable Graham said that he then looked at some CCTV footage from the shop.
[21] Mr French gave evidence in which he acknowledged having been at the store, said that he had seen Constable Renton and the others and approached them about the theft. In his version he was asked to take matters outside and he walked outside with Mr Raine and Mr Raine’s partner followed. He then dealt with the checkout operator but denied assaulting Mr Raine in the way Mr Raine and Ms Carter allege.
[22] He made no reference to physical contact and said he was concerned about his treatment by the police. In cross-examination he denied speaking loudly to Mr Raine and his wife or abusing them and denied grabbing and not letting go of Mr Raine. He considered he was not being shown the CCTV footage because the incident did not happen and the officers had conspired to unlawfully arrest him.
[23] The issue of the CCTV footage has been raised and discussed at previous calls of this appeal. The Judge recorded “there was a judicial direction some time ago” for the CCTV footage to be disclosed and if it was not disclosed it was not to be relied on by the prosecution. The CCTV footage has not been disclosed and could not therefore be relied on by the prosecution. The explanation given for that apparently is that unfortunately the CCTV footage downloaded onto the disk and kept by the Police initially was not the right footage. It was from a different time of the day. This was not initially picked up until the file was prepared for the trial and by this time the CCTV footage at the store had been written over. So the CCTV footage was simply not available either to support the prosecution case or available to Mr French.
[24] Relevantly the Judge dealt with the matter properly in the following way in his judgment:
[17] 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 proceeded to deal with the hearing before him on that basis.
[25] Another point Mr French raises is he seeks a DVD recording of the various hearings in the District Court. There were preliminary hearings in the District Court before the prosecution was heard at the substantive hearing before Judge Harding on 31 October. Transcripts of those relevant preliminary hearings and of the hearing before Judge Harding (both the evidence and the Judge’s ruling) have been provided to Mr French on more than one occasion.
[26] Recently, in response to a direction by Davison J the Crown collated the material yet again and provided signed minutes of Lang J dated 9 July; Whata J dated 15 August 2019; Davison J dated 19 August 2019; charging document; records of hearings in the District Court; the summary of facts; copies of the police officers’ notebooks; papers filed by Mr French himself; minute of Judge Bergseng in the District Court on 7 August 2018; transcript of the evidence of the hearing before Judge Harding; and copies of the Judge’s decision on 31 October 2018 and the subsequent sentence imposed on that date.
[27] The Court is satisfied that Mr French has been provided with all material relevant to the hearings in the District Court and the appeal before this Court.
[28] 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.
[29]In his ruling the Judge noted:
[18] I found Mr Raine to be relatively understated in his presentation, not prone to exaggeration, straightforward and clear and straightforward in his answers in cross-examination. His wife was equally straightforward and clear in her explanations in cross-examination.
[30] He also noted there was supportive evidence of a photograph taken by the Police of Mr Raine’s injury but placed little weight on that. He also noted that the officers’ evidence of Mr French’s agitated state was consistent with the evidence of Mr Raine.
[31]On the other hand, in dealing with Mr French’s evidence the Judge said:
[20] Mr French, in giving evidence, was markedly less impressive as a witness. He appeared to avoid the key issues, to be reluctant to answer questions directly in cross-examination
and concluded that:
where there are differences between his version of events and that of the complainant and his wife I prefer the complainant and his wife.
The Judge therefore found the matters proved beyond reasonable doubt.
[32] 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.
[33]It follows that the appeal must be and is dismissed.
Venning J
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