Kenrick v Police

[2013] NZHC 3269

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000269 [2013] NZHC 3269

BETWEEN  ANTHONY RAYMOND KENRICK Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   9 December 2013

Appearances:           T Beach for Appellant

L Mills for Respondent

Judgment:                9 December 2013

(ORAL) JUDGMENT OF LANG J

[as to preliminary point relating to adequacy of trial transcript]

KENRICK v NEW ZEALAND POLICE [2013] NZHC 3269 [9 December 2013]

[1]      Mr Kenrick was charged under s 3 of the Summary Offences Act 1981 with behaving in a disorderly manner that was likely to cause violence against persons to start.  After a defended hearing in the District Court on 27 May 2013, Judge Wilson QC found the charge proved.  On 16 August 2013, the Judge convicted Mr Kenrick and ordered him to come up for sentence if called upon within 12 months.1     Mr Kenrick now appeals against conviction.

[2]      The point I am required to determine today is whether the written transcript of the hearing in the District Court is so deficient that the appeal should be allowed and a rehearing ordered.  That will not always occur when the transcript of a lower court hearing is deficient. Whether or not a rehearing will be ordered will depend on a variety of factors.  These include the extent to which the transcript is deficient, the extent to which the Judge in the lower court gives a detailed description of the evidence and the reasons for his or her findings of fact, and the nature of the issues raised on appeal.  The ultimate question must always be whether the deficiencies in the transcript are such that the appellate court cannot properly determine the issues raised by the appeal.

[3]      The charge against Mr Kenrick arose after an incident that occurred on an inner city street in the early hours of 9 December 2012.  Mr Kenrick was part of a group of persons who became involved in an altercation with another group.  The police were called, and they arrested Mr Kenrick’s son.  Mr Kenrick then became involved, and was arrested as a result of comments that he made to police officers who were arresting his son.  The defence case at trial was that he had not said or done anything amounting to disorderly behaviour of a type that might cause violence to start.

Decision

[4]      There are quite significant deficiencies in the transcript.  Approximately 40 minutes of hearing time has not been transcribed.  This includes significant portions of  the  defence  case.    Counsel  for  Mr  Kenrick  emphasises  that  the  Judge  was

essentially required to determine an issue of credibility and, in doing so, he needed

1      Police v Kenrick DC Auckland CRI-2012-004-019498, 27 May 2013.

to assess the evidence given by the witnesses called for the defence.  He submits that this will not now be possible given the state of the transcript.

[5]      The issue I am required to decide is finely balanced.  Having said that, it is clear that three of the defence witnesses, namely Mr Allingham, Mr Pulham and Ms Roberts give evidence that was of virtually no assistance to the issue the Judge was required to determine. There are also reasonably significant deficiencies in the transcript of the evidence of both Mr Kenrick and his son, but for the most part these relate to cross-examination rather than their evidence-in-chief.   Their evidence in chief has been fully transcribed, so this Court will have the benefit of that evidence in full.

[6]      The Judge reached his conclusion by preferring the evidence given by the police officers who attended the scene to that given by Mr Kenrick and his son.  The Judge reached his conclusion as a matter of logic and commonsense because he largely accepted  the  evidence  of  the  police  witnesses  on  the  issue  of what  Mr Kenrick had said and done after they arrested his son.  He also accepted the evidence of  the  police  officers  regarding  the  circumstances  they  encountered  when  they arrived at the scene.  Most of that evidence is transcribed.  The Judge reached his ultimate conclusion based on inferences he drew from that evidence.

[7]      I am therefore satisfied that as matters currently stand, this Court will be able to determine the appeal based on the evidence that has been transcribed.  For that reason, I am not prepared at this stage to allow the appeal and direct a rehearing. Ultimately, however, it will be a matter for the Judge who hears the substantive appeal to determine whether a rehearing should be ordered.   It may be that, once counsel  refine  the  issues  in  their  written  submissions,  the  deficiencies  in  the transcript will be shown to have greater significance than is apparent today.

Result

[8]      I decline at this stage to direct that the appeal be allowed and the matter be remitted for rehearing in the District Court.

Timetable directions

[9]      The substantive appeal will be heard on 5 February 2014 at 2.15 pm (one and a half hours allocated).  In anticipation of that hearing, I now direct:

(a)       A synopsis of submissions in support of the appeal is to be filed and served no later than 22 January 2014.

(b)The respondent’s submissions in opposition are to be filed and served no later than 29 January 2014.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:
T Beach, Auckland