L v Police HC Wanganui CRI-2010-483-62
[2010] NZHC 2416
•2 December 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
CRI-2010-483-62
L
v
THE NEW ZEALAND POLICE
Hearing: 1 December 2010
Counsel: H Mallalieu for Crown
Ian L (In Person) Judgment: 2 December 2010
JUDGMENT OF JOSEPH WILLIAMS J
In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 1:00pm on the 2nd December 2010.
Crown Solicitors, Wanganui
Ian L
L V THE NEW ZEALAND POLICE HC WANG CRI-2010-483-62 2 December 2010
Introduction and relevant facts
[1] On 7 October 2010, following a defended hearing, Mr L was found guilty of breaching a condition in a restraining order against him, such order having been served on him on 19 March 2010.
[2] Mr L was convicted and sentenced to 75 hours community work. I mention, because it is relevant in the appeal that Mr L was also liable on conviction to pay a compulsory offender levy of $50 pursuant to s 105B of the Sentencing Act 2002.
[3] Mr L now appeals against both conviction and sentence. The facts are as follows.
[4] It appears that Mr L had been in an ongoing dispute with his neighbour, the complainant Ms Joy Andrews. The restraining order against Mr L reflected these ongoing difficulties.
[5] On 12 July 2010 at approximately 2pm, it is alleged that Ms Andrews was on her front deck, facing towards Mr L ’s house. Mr L looked directly at Ms Andrews and is alleged to have said “Andrews – fuck you.” A complaint was immediately made to the police.
[6] On 9 August 2010, an information was laid charging Mr L with breach of s 25(1)(a) of the Harassment Act 1997 in that he acted in a way to cause Ms Andrews to fear for her safety. I mention here (because it will become important later) that this information was given CR number 2207.
[7] On 17 August 2010, Mr L pleaded not guilty to the charge and the police say that they provided initial disclosure to him in accordance with s 12 of the Criminal Disclosure Act.
[8] On 26 August 2010, a second information was laid (CRN 2391) relating to the same event. This charged Mr L under s 25(1)(b) of the Harassment Act –
failing to comply with a condition of a restraining order. The relevant conditions was that Mr L not make contact with Ms Andrews.
[9] On 6 and 17 September 2010, Mr L complained that he had not received disclosure as required by the Criminal Disclosure Act. The first complaint was recorded against the CRN 2207 file, and the second complaint was in writing expressly referring to that file.
[10] By letter of 24 September 2010, further initial disclosure was made and on
26 September 2010, full disclosure was made in accordance with s 13 of the Criminal Disclosure Act. On that day Mr L attended the Whanganui Police Station to pick up an envelope containing that material, complaining as he did that disclosure was late.
[11] It seems that the first call of CRN 2391 – the second information relating to s 25(1)(b) of the Harassment Act – did not occur until Thursday the 7th the date on which the defended hearing for CRN 2207 had been set down. At the start of the hearing Mr L entered a plea of not guilty to CRN 2391 and the police withdrew the original CRN 2207 charge, leaving Mr L to face only the second charge.
[12] Evidence was duly called from the Bailiff who served the restraining orders, the complainant Ms Andrews, Constable Cobb, and the appellant. The complainant confirmed that Mr L had sworn directly at her across the fence as it were, and Mr L denied doing so.
[13] His Honour Judge Whitehead reviewed the evidence given by the two protagonists. His conclusion was as follows:
In my determination Ms Andrews was telling the truth: she clearly heard the words that were directed at her, she says; she clearly says that Mr L was looking at her when the words were said; she was distressed enough to immediately walk inside and tell her son and she immediately rang the police. In those circumstances I do not accept the evidence of Mr L , who was particularly emotional in respect of the matters, and the charge is proved and a conviction will be entered accordingly.
[14] The appeal against conviction is based on two grounds. The first is that Mr L alleges he received late disclosure in breach of the Criminal Disclosure Act. The second is that the learned Judge wrongly accepted the evidence of Ms Andrews who had perjured herself.
Procedural argument
[15] Section 12 of the Criminal Disclosure Act 2008 provides that, not later than
21 days after the commencement of criminal proceedings, the prosecutor must disclose the following information to the defendant:
a) a summary that is sufficient to fairly inform the defendant of the facts on which it is alleged that an offence has been committed and the facts alleged against the defendant; and
b)a summary of the defendant’s right to apply for further information under subsection (2) before entering a plea; and
c) the maximum penalty, and the minimum penalty (if one is provided for), for the offence; and
d)a list of the defendant’s previous convictions that are known to the prosecutor.
[16] The Crown says that initial disclosure (as s 12 disclosure is known) was made in respect of CRN 2207 on 17 August 2010 during the defendant’s first appearance in respect of that charge. Mr Mallalieu produced a standard form prosecution file cover sheet that seems to have been generated on or before 17 August. This records with a ‘Y’ in the checklist box relating to initial disclosure, that such disclosure has been made. I was advised from the bar that it is standard practice in police prosecutions to handover initial disclosure when defendants make their first appearance. There is no reason for me to doubt that position. Mr L says nothing of any initial disclosure but says that he was advised by the prosecuting sergeant at
that first hearing that disclosure would be made within 21 days and that he should stay at home until that had been done.
[17] Section 12(2) provides for further ongoing initial disclosure in respect of 11 further categories of information. Such disclosure is not subject to the same 21 day limit but must be provided “as soon as is reasonably practicable.”
[18] Section 13 provides for a separate process of “full disclosure”. This includes anything relevant to the prosecution that is properly disclosable together with a list of any further information for which disclosure is refused.
[19] On 26 August 2010, CRN 2391, the information under s 25(1)(b) of the
Harassment Act, was laid.
[20] Mr L complained in writing, as I have said, about the lateness of disclosure on 17 September and full disclosure was in fact provided on the 26th of that month.
[21] If one accepts that initial disclosure was given on 17 August and follows the chain of disclosures while attaching them to the relevant CR number, it would appear that the 21 day compulsory timeframe was complied with in respect of CRN 2207 (which as I have said was later withdrawn) but not in respect of CRN 2391, the charge ultimately pursued.
[22] The Crown says this technical flaw does not matter because the disclosure was exactly the same in either charge. Thus, the Crown argued Mr L already had a complying initial disclosure when he was charged in respect of CRN 2391.
[23] Accordingly, the Crown argued, there was no basis upon which it could be said that Mr L was prejudiced even if, technically speaking, the only disclosure made after the CRN 2391 information was laid, was made after the 21 day limit on
26 September.
[24] In addition, the Crown argued that this disclosure question was raised by
Mr L at the hearing on 7 October 2010 when he was asked whether he was in
difficulty as a result of the new charge. He in fact confirmed that he wished to proceed anyway.
[25] It is clear that the factual basis upon which the two charges were brought is identical and, having looked at the summary of facts as disclosed on 17 August for CRN 2207, and 26 September for CRN 2391, they too are identical in all respects except for the charges.
[26] If Mr L was prejudiced at all, it is by the fact that a charge under s 25(1)(b) is easier to prove than one under s 25(1)(a). Paragraph (a) requires a positive act in contravention of a restraining order whereas paragraph (b) relates only to failure to comply with a condition. In addition, in the way the CRN 2207 information was laid, the police would have been required to prove that what Mr L said caused Ms Andrews to fear for her safety and that a reasonable person in those circumstances would also have felt the same fear. The switch to breach of the condition against making contact with Ms Andrews had none of these complicated subjective/objective elements to prove. While this change in strategy by the police made it more difficult to defend himself, it had nothing to do with disclosure (Mr L ’s relevant ground of appeal) and was entirely permissible.
[27] Mr L said he did not find out about CRN 2391 until the day of his defended hearing. I have no reason to disbelieve him. But Mr Mallalieu confirmed that the information had in fact been provided on 26 September in the envelope with the disclosure material. The problem was Mr L did not open the envelope until the hearing day so was not aware of its’ contents.
[28] While it appears to me that the way the police handled the charges and disclosure in this case was untidy and disorganised at best, there does appear to have been fault on both sides and in the end, crucially, no relevant prejudice to the appellant. He received initial disclosure of the allegations against him on the 17th of August; they were the same for both charges. Moreover, he chose to proceed on the
7th of October despite the disclosure issues.
[29] In the circumstances, I am bound to accept the police’s submission that there was substantial compliance with ss 12 and 13 of the Criminal Disclosure Act in the sense that Mr L did have in his possession within 21 days of the laying of CRN 2391, information relating to the exact factual allegations against him in accordance with the initial disclosure requirements of s 12. In fact he had that information even before the charge was laid. I find therefore that this ground of appeal is not made out.
Substantive argument
[30] As to the ground of appeal relating to the substantive decision of the learned Judge, Mr L effectively argued that the Judge had erred in accepting Ms Andrews’ version of the facts over his.
[31] It was a condition of the restraining order that Mr L was not to make contact with Ms Andrews. Ms Andrews’ evidence provided details as to contact being made – that is, his remarks to her – together with a contemporaneous handwritten note recording that alleged statement, and a record of a phone call to the police about the matter – again, contemporaneous. Against that, Mr L had no clear memory of the event when he gave evidence. He simply said it did not take place and it was inconsistent with the way he acted.
[32] It is traditionally difficult for appellants to overturn findings of fact of this kind and for good reason. Judge Whitehead saw the protagonists and made his judgment based on what he saw and heard. I do not have that advantage on appeal. That is the reason the authorities caution appellate courts against interfering in findings of primary fact arising from viva voce evidence given in court before the Judge.
[33] Not only am I unwilling to interfere in Judge Whitehead’s judgment in that respect, having reviewed the Notes of Evidence myself, I am not at all surprised by the conclusion he reached.
[34] I find that this ground too must fail, and the appeal against conviction is accordingly dismissed.
Appeal against sentence
[35] Mr L also appeals against sentence, although his focus is entirely on the
$50 offender’s levy imposed under s 105(b) of the Sentencing Act 2002. Mr L called this a fine but it clearly is not. In fact it is not judicially imposed at all. It is imposed by Parliament. I have no jurisdiction to waive the levy, neither did Judge
Whitehead. Appeal against sentence must accordingly also be dismissed.
Joseph Williams J
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