Handy v Police
[2017] NZCA 557
•5 December 2017 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA101/2016 [2017] NZCA 557 |
| BETWEEN | JARVIS-MONTREL HANDY |
| AND | NEW ZEALAND POLICE |
| Hearing: | 16 November 2017 |
Court: | Brown, Courtney and Toogood JJ |
Counsel: | Applicant in person |
Judgment: | 5 December 2017 at 10.00 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to file the application for leave to bring a second appeal is granted.
BThe application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Toogood J)
On 8 June 2015, the applicant, Jarvis-Montrel Handy, was convicted in the District Court at Porirua by Judge Tompkins on a charge of assault under s 9 of the Summary Offences Act 1981.[1] He sought a discharge without conviction under s 106 of the Sentencing Act 2002 but was instead convicted, fined $500 and ordered to pay court costs of $130.[2]
[1]New Zealand Police v Handy [2015] NZDC 10275.
[2]New Zealand Police v Handy [2015] NZDC 14736.
Mr Handy’s appeal against both the conviction and the refusal to grant a discharge without conviction to the High Court was dismissed by Simon France J in a judgment dated 10 December 2015.[3] He now seeks the leave of this Court under ss 237 and 253 of the Criminal Procedure Act 2011 to bring a second appeal.[4]
[3]Handy v New Zealand Police [2015] NZHC 3160.
[4]This Court has confirmed that an appeal against a refusal to grant a discharge without conviction is characterised as an appeal against both conviction and sentence: Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.
Mr Handy’s application was filed nearly a month out of time and consequently he requires an extension. Because the delay is explained by Mr Handy being self-represented and the respondent does not assert to have suffered any prejudice, we grant the extension of time to file the application for leave to bring a second appeal.
Background
Mr Handy and the complainant were colleagues working in the same part of their employer’s business. The evidence given in the District Court indicated that they had a disharmonious relationship; the complainant described Mr Handy as being abusive to her in the months and days prior to the assault.
The complainant said in evidence that at about 2.30 pm on 2 August 2013, Mr Handy “barged into” her right shoulder while walking past her, knocking her off balance. Although the complainant considered Mr Handy’s actions to be deliberate and reported it to her manager, she made no formal complaint to police at that time. However, at around 3.15 pm that day, the complainant said Mr Handy deliberately barged into her again, dropping his shoulder and striking her around the cheek. The impact caused her to stagger backwards and end up half falling to the ground and half leaning against a large stack of IT equipment boxes stored in the middle of the room. She was taken home immediately after the incident and received medical attention. She said in evidence she was in no state to return to work and suffered pain in her shoulders and left breast. She described herself as having serious flashbacks and said she was severely traumatised.
The sole issue in the District Court was whether the Police had proved beyond reasonable doubt that Mr Handy had applied intentional force to the complainant. Judge Tompkins was satisfied on the evidence of the complainant and a co-worker who saw the assault that Mr Handy deliberately barged the complainant, rejecting Mr Handy’s account that it was the complainant who deliberately came into contact with him.
Appeal to the High Court
Mr Handy’s appeal to the High Court against the conviction was founded on a challenge to the conduct of his trial counsel in the District Court. The challenge to the decision that he should not be discharged without a conviction was founded on assertions that conviction would create difficulties with his employment prospects and with immigration matters that would be out of all proportion to the gravity of the offence.[5]
[5]Sentencing Act 2002, ss 106 and 107.
In dismissing the appeal, Simon France J found there was no error by trial counsel: Mr Handy had been competently represented and in accordance with his essential instructions; the agreed defence was put; and, Mr Handy’s evidence properly led. The Judge concluded that there was no other basis on which the finding that Mr Handy was guilty of assault should be overturned.
On the issue of the discharge without conviction, Simon France J said:[6]
[24] Mr Handy works in the security area and has done so for some time. The nature of the work he has been consistently engaged in requires that he hold a certificate issued by the Private Security Personnel Licensing Authority. The conviction will be a bar from holding such a certificate for a period of seven years, although it is possible to seek a waiver.
[25] Mr Handy resides in New Zealand pursuant to a residence class visa but with expired travel conditions. That means if he leaves New Zealand he would need to make further immigration applications. Mr Handy is concerned about the impact a conviction would have on such applications. The restriction on his ability to travel is heightened by the fact that he was born in the United States of America so has obvious reasons to want to be able to travel freely. Mr Handy also notes that he has physical and health restrictions that make the type of work he has been doing particularly suitable. He is otherwise limited in the range of suitable employment opportunities.
[26] In the District Court the application was declined because the Court considered the consequences of a conviction to be largely speculative and because of its assessment of the nature of the offence. Although charged under s 9 of the Summary Offences Act 1981, the Judge noted that the assault had had particularly significant effects on the victim. His Honour was of course best placed to assess that aspect, having seen and heard the witness.
[27] I accept, perhaps more than the District Court, that there will be consequences for Mr Handy. He will need to seek a waiver for a security certificate, and it will be a matter to be disclosed on any immigration application. I do agree, however, that the conviction is not an absolute bar. It will weaken Mr Handy’s position, but no more than that. I also note that the quantum of the fine, and the Act under which a charge was brought, will be recognised by decision makers as an indication of the level of offending.
[28] The fact that it is a Summary Offences Act conviction certainly brought the question of a discharge without conviction into play, but the Judge recognised this and gave reasons why in this case there were reasons to go behind the label, and see the gravity of the offending as more serious than might otherwise seem the case. I see no basis on appeal to interfere with that assessment.
Leave to bring a second appeal
[6]Handy v New Zealand Police, above n 3.
We heard Mr Handy in full on both the leave application and on the merits of his proposed appeal against the High Court’s decision. We address the question of leave first. This Court may grant leave to bring a second appeal only if it is satisfied that the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred, or may occur unless the appeal is heard.[7] As this Court confirmed in McAllister v R, the test for a second appeal is high.[8]
[7]Criminal Procedure Act 2011, ss 237(2) and 253(3).
[8]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
There is no suggestion in this case that the decision of the District Court or the judgment of the High Court raise any matters of general or public importance. The essence of Mr Handy’s application is that a miscarriage of justice may have occurred, or will occur unless the appeal is heard.
Conviction
In respect of his conviction, Mr Handy raises essentially the same complaints as to the conduct of his trial counsel as he did in the High Court, alleging that he failed to properly put, or adequately develop, the defence case. In particular, it is submitted that defence counsel failed to raise any points to attack the credibility of the complainant or other witness to the assault. He submits Simon France J erred in his assessment of trial counsel’s conduct. However, Simon France J had the benefit of hearing from Mr Handy’s trial counsel, and we do not consider that there is anything that has been put forward to suggest he was wrong in his conclusion that Mr Handy was adequately represented at trial.
As to the finding that Mr Handy was guilty of assault, the case was one involving a conflict between the evidence of the complainant and a co-worker on the one hand and Mr Handy on the other. It was a fact-specific issue and, in keeping with the view of the High Court, we consider Judge Tompkins was entitled to make the credibility findings that he did and conclude that the offence was proved beyond reasonable doubt.
Discharge without conviction
In respect of the failure to grant a discharge without conviction, Mr Handy argues that Judge Tompkins overstated the gravity of the offending. But the Judge was entitled to conclude on the evidence he heard that the assault was more than minor. The Courts below both took an orthodox approach to the question under s 107 of the Sentencing Act of whether they were satisfied that “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.”
We are not persuaded that the decision of either the District Court or the High Court under ss 106 and 107 was wrong and that a miscarriage of justice may have occurred or will occur.
Mr Handy’s application for leave to bring a second appeal against both conviction and sentence fails to meet the required threshold and must therefore be declined.
Result
The application for an extension of time to bring the application for leave is granted.
The application for leave to bring a second appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
0
3
0