Handy v Police
[2015] NZHC 3160
•10 December 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2015-485-000060 [2015] NZHC 3160
BETWEEN JARVIS-MONTREL HANDY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 8 December 2015 Counsel:
C Sheat for Appellant
D La Hood and S T A Ellis for RespondentJudgment:
10 December 2015
JUDGMENT OF SIMON FRANCE J (Appeal against conviction and sentence)
[1] Mr Handy was charged with one charge of assault under s 9 of the Summary Offences Act 1981. It was alleged that he deliberately barged into a co-worker, dropping his shoulder into her as he did so. Mr Handy accepted contact had occurred, but said it was caused by the complainant. Mr Handy’s position was that the complainant had deliberately initiated contact so as to be able to make a claim of assault, and thereby cause him to lose his job. The event was witnessed by a co-worker who broadly described the events in the same way as the complainant.
Mr Handy was convicted and was fined $500.1
[2] Mr Handy appeals both conviction and sentence. The conviction appeal involves a challenge to the conduct of the trial by his counsel, Mr Val Nisbet.2 The sentence appeal challenges the decision of the District Court not to discharge
Mr Handy without conviction.
1 Police v Handy [2015] NZDC 10275, [2015] NZDC 14736 (Sentencing).
2 The principles relevant to this ground of appeal were recently reviewed in R v Hall [2015] NZCA 403.
HANDY v POLICE [2015] NZHC 3160 [10 December 2015]
Conviction appeal
[3] Mr Nisbet was the last in a sequence of lawyers appointed to act for Mr Handy. Mr Handy had found dissatisfaction in the performance of previous counsel because they were unwilling to approach the task in the collaborative way that Mr Handy wished.
[4] Initial contact with Mr Nisbet was in early 2014. The trial did not take place until June 2015 due to various adjournments. Mr Nisbet acted throughout this period and continued to do so despite a number of matters being raised by Mr Handy with the Legal Services Agency. By the time of trial Mr Nisbet had indicated his willingness to withdraw and had suggested Mr Handy try elsewhere. At the same time Mr Nisbet indicated he would conduct the case if Mr Handy wished.
[5] For the purposes of the appeal there is no real complaint about the period between Mr Nisbet accepting the assignment and the trial. Indeed it is accepted that there were several meetings and considerable discussion over a list of questions Mr Handy had prepared by the time Mr Nisbet came on board.
[6] The lists of questions require some attention. They relate to the two primary prosecution witnesses – the complainant and the observer. The questions are framed literally as potential cross-examination questions, at least as Mr Handy would frame them:
With regard to the first contact, do you expect the Court to accept you stood up and walked about five metres from your desk completely unaware of your surroundings in a high foot traffic area?
The tops of the office cubicles did not lower above your line of vision did they?
A person sitting or standing at your desk could see a person walking along
Darren’s cubicle correct? …
[7] The questions also anticipated, in a way counsel would immediately recognise as untenable, particular answers having been obtained from preceding questions:
that story does not add up, Ms X. One plus one certainly does not add up to negative three. Isn’t it true that you wanted to rub salt into the wound that you believe Y delivered with her racist sentiments…
There were 55 such questions in relation to the complainant and 33 in relation to the observer.
[8] It has been necessary to set out the style of question and the number, in order to discuss the first factual conflict. Mr Handy contends that it was agreed these questions would all but one be put, not in their exact wording, to the witnesses. Mr Nisbet disputes that. He says there was considerable discussion about the questions and the defence generally, but there were never instructions or agreement to put all the questions.
[9] Mr Nisbet was questioned about the content of a telephone conversation he had with Mr Handy shortly after he accepted the assignment. Mr Handy had recorded the conversation without Mr Nisbet’s knowledge. One use made on appeal of the conversation was Mr Handy’s focus on the questions. Reliance was also placed on emails from Mr Handy dated May 2014. The overall thrust of the submission was that these events confirm that the questions were so important to Mr Handy, it was unlikely that the situation described by Mr Nisbet would be the case.
[10] I accept Mr Nisbet’s evidence without hesitation. First the material relied upon by the appellant, such as the initial conversation, occurred more than a year before the trial. Subsequent to that there were meetings to discuss the issues, and these are likely to have refined matters. There is no doubt however, that Mr Nisbet would have been assisted in his understanding of the case by reviewing those questions with his client. Second, one need only consider the concept to recognise experienced counsel such as Mr Nisbet would be unlikely to agree to approach cross-examination of witnesses in that constrained way. It is unrealistic for counsel to be dictated to that extent, and some of the questions, however worded, are impractical or untenable. I accordingly accept Mr Nisbet’s evidence that his instructions were not to pursue every question or topic that had been identified in the questions provided by Mr Handy.
[11] Reference was also made to what occurred during trial. For the first time, in cross-examination on the appeal of Mr Nisbet, notes were produced that Mr Handy had taken during the trial. They consist of two pages of sequential sentences relating to the complainant’s evidence. Mr Handy says when the opportunity arose he would place them in front of Mr Nisbet and tap. Mr Nisbet cannot recall seeing the notes before. I do not consider there is a conflict needing resolution. Mr Nisbet is not denying Mr Handy’s evidence – just that he cannot recall seeing the notes. It is regrettable that he had not been afforded the opportunity to consider them more carefully prior to the hearing. In any event, their existence does not alter my assessment. They may reflect Mr Handy’s attraction to the questions he had conceived, but it does not amount to instructions to ask them.
[12] Having heard Mr Handy’s evidence on the appeal I do not discount that he expected to see and hear more of the content of his questions being raised in court than happened. But that was not because of instructions to Mr Nisbet to do so but because of Mr Handy’s conviction that the questions were so obviously relevant and important that counsel would use them. I accept Mr Handy is disappointed that did not happen and that he believes his chances of acquittal have been hindered by their absence. I will consider whether he is right in that to the extent that a miscarriage may have occurred, but my analysis will not be informed by a conclusion that counsel did not follow instructions.
[13] Against that background I turn to the specific complaints. Although the written submissions identify the main challenge as being that the defence was not sufficiently developed, I first address the question of whether, as Mr Handy contends, counsel added a gloss to the defence that was not agreed and which was harmful. As noted, the defence was that the complainant engineered the occasion, including the contact, to create an opportunity to complain and to cause Mr Handy to lose his job. Mr Handy believes that counsel introduced a second limb, which was to suggest a staff wide conspiracy against Mr Handy rather than a focused plan sourced solely in the complainant.
[14] I accept that two questions asked by Mr Nisbet pose the proposition complained of but consider it is too much to say the defence was thereby changed. The primary example arose in the context of Mr Nisbet putting to the witness that her aim was to get Mr Handy sacked. The section as a whole reads as impeachment of the complainant’s motives. Further, when the cross-examination as a whole is considered, the idea that others were involved in the plan is peripheral.
[15] The second aspect of complaint is that the defence was not adequately developed. I consider this aspect of the appeal is unconvincing. First many of the omitted points were what could be called impeachment points, alleging flaws in the evidence or inconsistencies across statements. However, the examples identified at the appeal hearing are minor and would not have impacted on any general credibility assessment. Many were easily explained, and for others a denial by the complainant of the proposition could not have been countered with anything. Mr Handy’s views about what questions should be asked seem to be fuelled by an expectation that the desired answer will be obtained. There is little appreciation of what negative impact can occur if a witness is persistently asked impeachment questions which are denied and where there is no real material with which to come back at the witness. Such is the case here – many of the topics rely upon Mr Handy’s contrary view or interpretation on what objectively were quite peripheral matters.
[16] Many alleged inconsistencies relate to matters such as where people were positioned. These are things that are notoriously vague and inexact, especially when the incident happens unexpectedly and quickly. Others identify information provided on a later occasion that was not provided the first time. It is not uncommon to identify this form of inconsistency by omission. However, a failure to do so would only be significant if the context of the original statement strongly undermined the later revelation. None of the points identified to me fall into that camp. Mr Handy believed these omissions could be used to develop a theme that the complainant was prone to embellish. However, a difficulty with that is that the defence was not one of an overstatement or misunderstanding. It was that contact had occurred, the complainant had deliberately caused it, and the complainant was maliciously lying in order to get Mr Handy fired. The embellishment argument does not directly impact on that. Finally, the putting of some minor inconsistencies would
carry real risks in terms of allowing reinforcement of the witness through re-examination on the largely consistent prior statements.
[17] Another complaint is that trial counsel did not challenge the complainant’s credibility. This seems to be a concern that it was not directly put to the complainant that she was lying. This misunderstands the context which was a Judge alone trial in front of an experienced Judge. The questions asked carry the implication that the witness was being challenged and there is no doubt the Judge and indeed the witness understood that.
[18] I comment briefly on two other complaints. One concerns the independent observer. Mr Handy complains that his credibility was insufficiently challenged and does not accept that the witness was independent from the complainant. However I was not pointed to anything in the voluminous materials filed on the appeal that could substantiate this. Such material as there is seems to be purely speculation.
[19] The second matter is a question asked when leading Mr Handy’s evidence. Mr Nisbet asked Mr Handy to confirm that any contact between them was, from his point of view, accidental. Mr Handy believes that question undermined the defence that it was deliberate contact by the complainant. However, I do not read it that way
– it is simply a question seeking confirmation from the defendant that he did not deliberately make contact. That is, after all, the essence of assault. Mr Handy gave a long answer where he explained why he was uncomfortable with the concept of accident so his point of view was put forward. The question could, however, have just been answered by confirming his denial that he deliberately contacted the complainant.
[20] My general assessment is that it was a well presented defence that did not succeed. Mr Handy had taken part in a police interview and that was presented as part of the prosecution case. Mr Handy was also called to give evidence. The simple difficulty for Mr Handy is that his evidence was not accepted. The primary obstacle for the defence was the evidence of the independent observer, who had no past animus with Mr Handy. Generally the questions put to this witness reflected the
topics underlying Mr Handy’s proposed questions, but the reality is that there was little to work with from a defence view point.
[21] Before concluding the analysis of the conviction appeal, I note that another aspect of the appeal related to Mr Handy’s sense that Mr Nisbet conducted the trial in a disinterested way, and that, by his actions and comments, he undermined the defence.
[22] This topic was not particularly pursued in evidence or submissions, but I observe I have not seen material to support it. Mr Nisbet is an experienced defence counsel who is technically proficient. It was a Judge alone trial where counsel were aware that it is unnecessary, and generally not appreciated, to be overly demonstrative. I accept Mr Nisbet’s denial that he deliberately undermined the case, or that he acted in a way prejudicial to it. The objective evidence is that he acted for Mr Handy through a lengthy period, and maintained his willingness to act even though the subject of several referrals to Legal Services Agency. Mr Handy accepts there were numerous lengthy discussions, and it is fair to observe this was in relation to a single allegation of a Summary Offences Act assault. That is in no way to trivialise the importance and significance of the matter from Mr Handy’s viewpoint but it does highlight a commitment from Mr Nisbet that is objectively inconsistent with the allegations made against him.
[23] The conviction appeal is dismissed.
Sentence appeal
[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.
Outcomes
[29] The conviction appeal is dismissed. My assessment is that Mr Handy was competently represented and in accordance with his essential instructions. The agreed defence was put and the defendant’s evidence was properly led. I accept Mr Handy may have expected more topics to be raised or some to be addressed in more detail, but I consider that generally the topics were covered albeit not in the
style and depth Mr Handy anticipated. I am not all convinced there were matters not addressed which should have been or which would have affected matters.
[30] Concerning the sentence appeal, there is no basis on which I might interfere with the trial Judge’s assessment. No error was made and the gravity of the offence assessment was informed by the Judge’s exposure to the parties, and to all the
evidence. The sentence appeal is dismissed.
Simon France J
Solicitors:
C Sheat, Barrister & Solicitor, Wellington
Luke Cunningham & Clere, Crown Solicitors, Wellington