L v Police HC Auckland CRI 2009-404-333

[2009] NZHC 2378

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-333

L

Appellant

v

POLICE

Respondent

Hearing:         23 November 2009

Appearances: Appellant in person

S K Pidgeon and Mr Kerkin for respondent

Judgment:      26 November 2009

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 2 pm on Thursday 26 November 2009

Solicitors/party

A M S L  , Suite 2405 Metropolis Apartments, Courthouse Lane, Auckland

Crown Solicitor Auckland

L V POLICE HC AK CRI 2009-404-333  26 November 2009

[1]      Together with his son Richard, the appellant faced trial in the Auckland District Court on 17 September 2008 on one charge of threatening to kill.  At the conclusion of the day long summary hearing, Judge Field found both defendants guilty.  The appellant was convicted and fined $1000, and directed to pay Court costs of $130.  Richard was convicted and fined $750, and ordered to pay Court costs of

$130.   The charges concerned the same alleged victim and arose out of the same incident.

[2]      Richard  was  represented  at  the  trial  by  senior  counsel.    The  appellant represented himself, although he had earlier been represented by a very experienced criminal barrister.

[3]      Both defendants appealed to this Court.  After a time, for reasons to which I will return, the appellant withdrew his appeal.   Richard’s appeal was heard before Winkelmann J on 3 August 2009.  In a judgment delivered on 27 August 2009 the Judge allowed the appeal, quashed the conviction and declined to remit the case back to the District Court for retrial pursuant to s 131 of the Summary Proceedings Act

1957.

[4]      Shortly thereafter the appellant filed a fresh notice of appeal.  He seeks leave to appeal out of time and on the appeal itself, an order quashing his conviction.

[5]      The grounds set out in the notice of appeal replicate those relied upon by

Richard before Winkelmann J, namely:

a)       That   the   District   Court   had   no   jurisdiction   to   hear   the   two informations against the separate defendants at the same time;

b)Alternatively,  it  was  not  appropriate to  hear the two  informations together;   the procedure adopted has resulted in a miscarriage of justice;

c)       There is evidence which was not placed before Judge Field in the form  of  an  earlier  statement  to  the  police  made  by  one  of  the witnesses at the hearing.   Had that statement been available at the trial, the Judge could not have been satisfied beyond reasonable doubt that the words attributed to the appellant were spoken by him;

d)On the evidence, the Judge could not reasonably have been satisfied that the statement made by the appellant did amount to a threat to kill.

Factual background

[6]      The facts fall within a narrow compass.  At approximately 3 pm on Tuesday

13 November 2007, the victim, a Mr Meadows, was seated alone outside the Vulcan Lane Café, in Vulcan Lane, Central Auckland.   He was awaiting the arrival of a business associate.   The appellant and Richard had together been involved in a bitterly contested on-going civil dispute with Mr Meadows.  Quite by chance, they happened to be in Vulcan Lane at the same time as the victim.  The police case was that the appellant and Richard walked up to Mr Meadows, and that the words relied upon by the police were then spoken.

[7]      On the findings of Judge Field, Richard said to Mr Meadows: “You’re dead”. The appellant then added:  “You are going to squeal like a pig” or “You will squeal like a pig”, to what had been said by Richard.  Mr Meadows did not respond.  The appellant and his son went to a nearby café.

[8]      There seems to have been a further confrontation following a period during which the appellant and Richard had kept Mr Meadows under observation from a nearby building, allegedly, on the police case, to intimidate him.   Later that day Mr Meadows laid a complaint at the Auckland Central Police station.

Appeals out of time

[9]      The appeal is out of time by many months.   The appellant seeks an order extending the time prescribed for the filing of an appeal, pursuant to s 123 of the Summary Proceedings Act.  The proper approach to the application of that section was recently discussed in Tuake v NZ Police HC AK CRI 2009-404-93, 17 June

2009, by Wylie J, who said:

[16]     The section gives the Court a broad discretion to extend the time prescribed by the Act for the filing of any notices.  It is a general provision, and  there  are  no  specified  criteria  to  assist  in  determining  when  the discretion should be exercised.   While it is perhaps a trite observation it seems  to  me  that  the  discretion  is  given  essentially  for  the  purpose  of avoiding miscarriages of justice.

[17]     In earlier cases, the Courts have indicated that the following factors may be relevant:

(a)       Whether the failure to file the necessary papers within time has arisen in circumstances which ought reasonably to be excused.

(b)Whether the proposed respondent has suffered any prejudice by the delay, being prejudice of a kind other than that which is inherent in the extension of time itself.

(c)      Whether  the  proposed  appeal  has  sufficient  prima  facie

merit to warrant the extension of time sought.

(d)Such  other  matters  as  may  bear  on  the  exercise  of  the discretion in any particular case.

See e.g. Police v Hill [1990] 6 CRNZ 280 at p 281, and Cleggs Limited & Anor v Department of Internal Affairs HC AK M1032/84, per Thorpe J, 5

September 1984.

[10]     The appellant proffers a simple explanation for the lateness of the present appeal.  His first appeal was filed and served within time.  He decided however to defer proceeding with that appeal until Richard’s appeal had been dealt with in this Court.   He had no legal advice, and thought that the appropriate course was to withdraw his own appeal and await developments.   When Richard’s appeal succeeded, he filed a fresh appeal, unaware, he says, that the course he had adopted left him in procedural jeopardy.

[11]     Ms Pidgeon accepts that the respondent has suffered no prejudice by reason of the delay.  That being so, the question of whether leave ought to be granted will turn largely on whether the proposed appeal has sufficient prima facie merit to warrant the extension of time sought.  I therefore turn to the appeal itself.

District Court jurisdiction

[12]     Before Winkelmann J it was argued, on behalf of Richard, that the District Court  had  no  jurisdiction  to  hear  these  informations  together.    Winkelmann J concluded that the District Court did have jurisdiction to do so:  Gilroy v Police HC AK A166/01 30 May 2003 and McKay v District Court at Auckland [2008] 1 NZLR

133 based on the decision in the House of Lords in Clayton v Chief Constable of

Norfolk [1983] 2 AC 473.

[13]     I agree.  The jurisdiction of the District Court is not confined to cases where the defendants consent.   Section 16 of the Summary Proceedings Act 1957, upon which earlier contrary authorities rely, is aimed at the prohibition of duplicity in the one information, and not on the prohibition of trials involving multiple informations or multiple defendants.

Miscarriage of justice?

[14]     Joint trials demand particular procedural vigilance.   Here the course of the trial has thrown up two problems which give rise to concern as to whether overall procedural fairness was achieved.

[15]     As was observed by Winkelmann J, there is no record of a formal consent by the defendants to the informations being heard together.   In the absence of such consent, the Judge was required to consider whether a fair hearing was possible at a joint  trial.     There  is  no  explicit  indication  that  the  Judge  gave  a  separate consideration to that requirement.

[16]     Two inter-related difficulties arose during the course of the hearing.  Richard had made a statement to the police which gave an account that tended to support the prosecution case against the appellant.  But there was an inconsistency between what he had said in his statement and the evidence given by him at trial.  In his statement Richard said that the appellant had told Mr Meadows that “ … you are going to squeal like a pig”.  In his sworn evidence however, Richard modified that to “You squeal like a pig” (the latter expression apparently being a reference to allegedly false statements made in evidence given by Mr Meadows in commercial proceedings between the parties).

[17]     Richard was extensively cross-examined on the inconsistency.   Judge Field carefully reminded himself that Richard’s statement was not evidence against the appellant.  He said in his decision:

[14]     I record that that is not evidence that can be used against Mr Mark L  , a statement of Richard’s evidence in respect only of his involvement and has not been adopted, indeed, has been refuted by Mr Mark L  .  It can however affect issues of Mr Richard L  ’s credibility …

[18]     Before  Winkelmann  J  it  was  submitted  that  this  Court  could  have  no confidence that Judge Field had in fact observed his own strictures, since he gave joint reasons for convicting the two defendants.   But, Winkelmann J noted, Judge Field is an experienced District Court Judge and absent indications that he ignored his own directions to himself, she was satisfied that he must have followed those directions.

[19]     But it is troubling to note nevertheless that the Judge permitted counsel for the police to cross-examine the appellant about the content of Richard’s statement to the police.  The appellant was specifically asked to comment on the version of his comments to Mr Meadows appearing in Richard’s statement.  Such questions ought not to have been put to the appellant.  That they were permitted is illustrative of the difficulties that can arise in joint trials.  There is a risk that what occurred could give rise to a perception that despite the Judge’s reference to the limitations surrounding use of Richard’s statement, impermissible weight may nevertheless have been placed on that statement, as against the appellant.

[20]     Of itself however, that is probably not a sufficiently weighty factor to justify intervention by this Court, given that there was other evidence adverse to the appellant which the Judge was entitled to prefer if he chose.

[21]     But the decision of the Judge to limit cross-examination by the appellant does give rise to misgivings about the ultimate fairness of this trial.  An accused person has a largely unfettered right to cross-examine a co-accused:   s 84(1)(b) of the Evidence Act 2006;  R v Hilton [1972] 1 QB 421 and Lui Mei-Lin v R [1989] AC

288.  The Judge nevertheless ruled that the defendants (or counsel in Richard’s case) could not cross-examine each other, although the appellant was permitted to cross- examine witnesses called by Richard in the usual way.

[22]     In the result:

a)       Richard was cross-examined by prosecuting counsel as to the contents of his out of Court statement implicating the appellant;

b)The  appellant  was  cross-examined  by  counsel  for  the  prosecution about what Richard had said in his out of Court statement about the appellant’s role, but;

c)       The appellant himself was not permitted to cross-examine Richard on that topic, or indeed on any topic.

[23]     As Winkelmann J observed in the earlier appeal, it is not clear why the Judge adopted that particular approach.  She observed:

It is not clear what impact the procedure adopted in relation to cross- examination had on the trial, but it is perhaps symptomatic of the fact that the  implications  of  hearing  the  informations  together  was  not  thought through.

[24]     I agree.    The appellant  was  entitled  to  cross-examine Richard.    He was prevented  from  doing  so.     In  that  Richard’s  evidence  plainly  implicated  the appellant, it cannot be said that the Judge’s decision to prevent such cross- examination  was  academic  or  of  no  practical  significance.     The  problem  is

exacerbated by the manner in which the trial Judge permitted Richard’s out of Court statement to be deployed.

[25]     In my opinion the appellant suffered a degree of presumptive prejudice as a result of what occurred and the appeal must be allowed on these procedural grounds alone.

Ms Karpenko’s evidence

[26]     Ms Karpenko was an eye-witness who gave evidence for the prosecution. She had been seated at a table near Mr Meadows and heard much of what was allegedly said  by the  appellant  and  Richard.    The  Judge  relied  heavily  on  her evidence in finding them guilty.

[27]     Earlier Ms Karpenko had made a statement to the police in which she tended to be slightly less certain of the precise words used than when she was in the witness box.  The appellant’s complaint is that her earlier statement had not been provided to him pursuant to the prosecution’s disclosure obligations.  Had it been made available he says it would have been a useful cross-examination tool, by reason of apparent inconsistencies on matters of detail between the statement and Ms Karpenko’s sworn evidence.

[28]     The same argument was raised before Winkelmann J.   She chose not to consider it in detail by reason of her conclusions on other grounds of appeal. Likewise, I propose to leave this issue to one side.  Late in the piece, just a day or two prior to the hearing of the appeal, counsel for the police sought an adjournment to enable the respondent to file an affidavit explaining the circumstances in which the police claim they did in fact provide a copy of Ms Karpenko’s earlier statement to the appellant.   Andrews J refused to grant the adjournment.   However, at the hearing of the appeal Ms Pidgeon handed up to the Court a document that tended to suggest that a copy of Ms Karpenko’s statement had been provided to Mr Hart, who acted for the appellant for a time prior to the trial.  It is therefore possible that Mr Hart received the statement but that the appellant never saw it.  Be that as it may, it is unnecessary, given the outcome of this appeal, to consider this issue further.

Had the prosecution established guilt?

[29]     The Judge found that the words “You’re dead” were spoken by Richard to Mr Meadows.  He found also that the appellant followed Richard’s statement by saying to Mr Meadows that “You are going to squeal like a pig”, or “You will squeal like a pig”.

[30]     Ms Pidgeon accepts that the appellant’s statement can give rise to criminal liability only if combined with Richard’s earlier statement.  In other words, neither version of the appellant’s comment standing alone could be regarded as amounting to a threat to kill.

[31]     In the course of her judgment in respect of Richard’s appeal, Winkelmann J

said:

[40]      The Judge was satisfied that the words “you’re dead” were said, and in light of the unhappy relations to that point, that they were clearly not a joke, and that if said, did amount to a threat to kill.  What the Judge failed to address in his reasoning process was the inherent ambiguity in the words; “you’re dead” could as well mean you will be dead, as “you are finished”. In the context of on-going disputes between the parties, the latter was as likely a construction of the words as the former.   As the Judge himself remarked, based on the evidence of the witness Mr Simon Judd, the events on that particular day were “simply more of the same”.

[32]     Ms Pidgeon invited me to conclude that the trial Judge was right on this point,  and  that  the  alternative  meaning  identified  by  Winkelmann  J  was  not  a realistic interpretation of the expression “You’re dead”.  I am unable to accept that invitation.   In my view, Winkelmann J was perfectly correct to determine that the prosecution had failed to exclude the reasonable possibility that the words simply referred  to  the  admittedly  fraught  relationship  between  the  complainant,  the appellant and Richard, characterised as it was by verbal abuse and by on-going commercial litigation between the parties.  The words “You’re dead” could just as easily have meant that Mr Meadows was commercially finished, rather than that he was in physical danger.

[33]     Evidence was given at the trial of previous similar comments made in the context of the long running dispute between the parties.  Mr Simon Judd, to whom

Winkelmann J referred in her judgment, is a barrister who had acted for the appellant and Richard.  He confirmed that abuse of the type in issue here to his knowledge had occurred on previous occasions.

[34]     In my opinion Winkelmann J was correct in finding that the prosecution had not established beyond reasonable doubt either that the words amounted to a threat to kill, or that Richard intended Mr Meadows to understand that it was a threat that might be carried out.

Result

[35]     For  the  foregoing  reasons  leave  to  appeal  is  granted  and  the  appeal  is allowed.  The appellant’s conviction is accordingly quashed.

[36]     Ms Pidgeon suggested that if I allowed the appeal the appropriate course would be to remit the case for rehearing in the District Court.  That may well have been an appropriate course if procedural irregularities alone had vitiated the trial. However, my conclusions with respect to the final ground of appeal preclude the making of an order for a retrial.

C J Allan J