McGregor v The Queen
[2019] NZCA 589
•27 November 2019 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA349/2019 [2019] NZCA 589 |
| BETWEEN | DAVID GILES MCGREGOR |
| AND | THE QUEEN |
| Court: | Kόs P, Venning and Thomas JJ |
Counsel: | S J Zindel for Applicant |
Judgment: | 27 November 2019 at 10 am |
JUDGMENT OF THE COURT
AThe application for extension of time to seek leave to appeal is granted.
BThe application for leave to bring a second appeal against conviction is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Thomas J)
David Giles McGregor was charged with breaching a protection order arising out of events which occurred on 8 December 2017. On two occasions he unsuccessfully applied for the charge to be dismissed.[1] He was convicted following a Judge-alone trial before Judge Zohrab in the District Court on 4 December 2018.[2] His appeal against conviction was dismissed by Churchman J in the High Court on 15 May 2019.[3] He now seeks leave from this Court to bring a second appeal against conviction.
[1]Under the Criminal Procedure Act 2011, s 147.
[2]R v McGregor [2019] NZDC 27067 [District Court judgment].
[3]McGregor v R [2019] NZHC 1069, [2019] NZFLR 35 [High Court judgment].
Mr McGregor’s notice of appeal was filed out of time for reasons that are adequately explained. The Crown does not object to an extension. We accordingly grant the application for an extension of time for his application for leave to appeal.
Background
Facts
Mr McGregor became the subject of a final protection order issued by the Family Court at Nelson on 16 May 2017 following what the complainant described as a “hostile” and “toxic” nine to 10 month relationship that she said resulted in “four years of absolute hell”.
On the evening of 8 December 2017, the complainant was sitting outside at a bar with friends when she said she made eye contact with Mr McGregor. She said her “heart sank” when she saw him, and his mere presence had an immediate impact on her. The complainant accepted this was an entirely random meeting and there was no intimidatory behaviour at this stage. However, after making eye contact, Mr McGregor went inside, ordered a drink, and came back outside. He sat at a table facing the complainant. She said he “chose once again to sit close to me and intimidate me” and that he could have chosen anywhere else to sit.[4] Mr McGregor denied moving closer to her and said she moved directly behind him with her friends. In the end, the complainant felt so uncomfortable, she left.
[4]District Court judgment, above n 2, at [14].
The complainant and her friends went to another bar. She was starting to feel more relaxed when Mr McGregor walked in and sat at a table nearby. Mr McGregor says he was there first and she sat near him. After about a minute, she left. There was no physical or verbal interaction between them.
Mr McGregor was interviewed by the police on 12 December 2017, four days after the incident. During that interview he told the police he was trying to obtain CCTV footage from the bars. On 13 December 2017, Mr McGregor’s then counsel wrote to the police requesting they secure the CCTV footage as Mr McGregor had “been advised that such footage would only be released to the Police”. The letter asked that this be done “as soon as possible before it is lost”.
The police viewed the first bar’s CCTV footage and obtained stills from it but could not obtain footage from the second bar. The stills were useful only to confirm the presence of the complainant and Mr McGregor at the first bar.[5]
Dismissal applications
[5]At [30].
Mr McGregor’s first application to have the charge dismissed was on the ground that the police had failed to secure relevant CCTV footage from the bars and this had prejudiced his defence.[6] His counsel submitted the footage would support his version of events — that the complainant moved toward him and he never stared her down. The footage was no longer available because it had been recorded over. Judge Zohrab concluded that the footage did not belong to the police and he could not “responsibly conclude” that the charge should be dismissed due to the failure to disclose the CCTV footage.[7] When viewed contextually, the Judge said it was not the fault of the police. He found there was sufficient evidence for a jury to find the charge proven if properly directed, and dismissal was not appropriate.[8]
[6]Police v McGregor [2018] NZDC 13467 at [8].
[7]At [10].
[8]At [12]–[14].
At the conclusion of the prosecution case on 4 December 2018, Mr McGregor made a second application to have the charge dismissed.[9] His counsel submitted the evidence before the Court disclosed, at its height, very low-level offending which would attract only a nominal punishment. The Judge concluded the offending was more than trivial in light of the background. His counsel then submitted it was arguable that elements of the offence were not made out, again focusing on the failure of the police to obtain the CCTV footage. The Judge concluded there was sufficient evidence to establish psychological abuse and the failure to obtain the CCTV footage was caused by inefficiency rather than a deliberate act.[10] He said that he was “not really sure how [CCTV] footage would help” in this case because of the contextual background.[11] The Judge therefore refused to dismiss the charge.
Conviction
[9]R v McGregor [2018] NZDC 26994.
[10]At [12]–[13].
[11]At [12].
The Crown case was that the alleged abusive behaviour comprised Mr McGregor’s deliberate eye contact and close proximity to the complainant on two separate occasions at two separate bars on the same night, in the context of the relationship history between the parties.
Mr McGregor agreed he knew of the protection order and its terms. He maintained, however, that he was only “going about his lawful business” and was complying with the order in all respects.[12] In his police interview, he said that, although he had seen the complainant at the first bar, he kept to himself and did not look at or pay attention to her. He said the complainant was the one who had moved to sit next to him and he thought she and her friends might have been saying, “wanker, wanker” towards him. This was not put to the complainant at the trial. Mr McGregor said he was at the second bar for 20 minutes talking to someone before he saw the complainant come in, and that it was the complainant who came and sat close to him.
[12]District Court judgment, above n 2, at [3].
The Judge identified the issue as whether the Crown could “prove that [Mr McGregor’s] behaviour amounted to psychological abuse of the protected person”.[13] The Judge noted that psychological abuse included behaviour designed to humiliate, unsettle, antagonise, offend, provoke, worry, threaten and put down a person and that such behaviour could exploit vulnerability or abuse power.[14] He referred to police evidence about the CCTV footage and recorded his understanding that the footage was lost due to inefficiency.
[13]At [3].
[14]At [4], citing G v C (1997) 16 FRNZ 201 (FC) at 208.
The Judge found the complainant to be truthful, credible and reliable. She did not embellish or exaggerate. He said she gave evidence in a restrained, careful and measured way, unlike Mr McGregor in his police interview. The Judge made factual findings in line with the complainant’s evidence. He concluded it had been established beyond reasonable doubt that Mr McGregor had engaged in behaviour that amounted to psychological abuse of a protected person. Mr McGregor was convicted accordingly.
High Court appeal
Mr McGregor appealed his conviction and the two dismissal decisions to the High Court on the basis that, on the evidence, no jury could have found him guilty and the Judge should have dismissed the charges.[15]
[15]There is no general right of appeal from a decision refusing to dismiss a charge pursuant to s 147 of the Criminal Procedure Act, although it is possible to appeal such a decision on a question of law: Criminal Procedure Act, s 296.
Counsel for Mr McGregor submitted that his right to a fair trial had been compromised by the police failure to obtain the CCTV footage from the two bars.[16] He said that the police were under an obligation to disclose everything to which they had access, rather than simply what they regarded as pertinent.[17]
[16]New Zealand Bill of Rights Act 1990, s 24(d).
[17]High Court judgment, above n 3, at [31].
Churchman J referred to Mr McGregor’s police interview when he said that the CCTV footage would show he was not intimidating the complainant. He noted his counsel’s request to the police to secure the footage. Churchman J concluded that there was no error in Judge Zohrab finding that the CCTV footage would have been of little assistance, considering both parties accepted being present at both of the bars and overt intimidation was not alleged.[18] In any case, he said that, as the footage was not in the possession of the police, they were not able to disclose it. He agreed the Judge was correct in not dismissing the charge.
[18]At [34].
Churchman J found that the case was heavily factual and turned on findings of credibility made by the Judge. He noted it was not appropriate for him to interfere with the Judge’s assessment of the facts on appeal. The Judge was entitled to make the factual findings he did.[19]
[19]At [35]–[36].
Churchman J dismissed the appeal.
Grounds of appeal
Mr McGregor’s proposed grounds of appeal can be distilled as follows:
(a)The police were under an obligation to obtain and disclose the CCTV footage to Mr McGregor. Their failure to do so denied Mr McGregor the opportunity to have adequate facilities for his defence and a fair trial.[20] The District and High Court Judges were both in error when they concluded there was no such obligation and they should have dismissed the charge.
(b)Both Judges erred in finding there had been psychological abuse as there was insufficient evidence to support such a claim.
The statutory test
[20]New Zealand Bill of Rights Act, ss 24(a) and (d)–(e).
Section 237 of the Criminal Procedure Act 2011 prevents this Court from granting leave to bring a second appeal against conviction unless satisfied either:[21]
(a) the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[21]Criminal Procedure Act, s 237(2)
The threshold for leave to bring a second appeal is high.[22] Matters of general or public importance typically must raise issues of general principle or importance.[23] A court is slow to grant leave where success hinges upon the court reversing concurrent findings of fact from the decisions below.[24] Where a trial was before a judge alone, the bar is higher as two decisions giving reasons for the factual findings are available.[25]
Decision
General or public importance
[22]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
[23]At [36].
[24]Butler v Police [2016] NZCA 27 at [3].
[25]R (CA176/2016) v Police [2016] NZCA 403 at [26].
Mr Zindel, for Mr McGregor, submits this matter involves a matter of general or public importance as it concerns the duty of the police to facilitate the disclosure of potentially exculpatory time-sensitive material obtainable only by them.
We agree with Ms Mildenhall’s submission for the Crown that this matter involves the fact-specific application of settled legal principles. It is well settled that a defendant who alleges that the police have failed or omitted to obtain evidence must show that the missing evidence would have been of real assistance to their defence. As summarised by this Court in Harmer v R:[26]
The emphasis, we consider, should be upon the need for a showing by the accused or convicted person that it is more probable than not that the lost evidence would have been of real benefit to the defence because it would have created or contributed to creating a reasonable doubt.
[26]Harmer v R CA324/02, 26 June 2003 at [91].
More recently in Dashtabi v R, this Court emphasised that the police are not obliged to disclose information they do not hold or conduct investigations at the request of defendants.[27] The issue of whether the evidence in question would have been of real assistance to the defence in the circumstances will always be factual in nature.
[27]Dashtabi v R [2019] NZCA 214 at [89].
It is clear the issues raised in these proceedings are wholly fact specific with no wider relevance. No issues of general or public importance arise.
Miscarriage of justice
Both grounds of appeal have now been thoroughly traversed in both the District Court and the High Court. The Crown is correct in submitting that the present application is simply an invitation for further appellate review of wholly specific factual findings.
Both the District Court and the High Court appropriately focused on the impact that the absence of the CCTV evidence may have had on Mr McGregor’s defence, rather than the alleged omissions or actions of the police, given there was no finding of bad faith on their part. The law in this area, as discussed above, supports that this is the correct approach. Neither Judge considered that the CCTV footage would provide significant help to Mr McGregor’s defence. They were entitled to make this finding and we see no error.
It is apparent that Mr McGregor disagrees with the credibility and factual findings made by Judge Zohrab that were upheld on appeal. The Judge accepted the complainant’s account as credible, in contradistinction to the account given by Mr McGregor. There is no basis for this Court to interfere with that most fundamental of findings. In any event, the issue is not whether Mr McGregor moved closer to the complainant or whether he was at the second bar before the complainant, but whether Mr McGregor engaged in psychological abuse. The High Court was satisfied the Judge was entitled to find the charge proved on the evidence.
Conclusion
The application raises no grounds of general or public importance. A miscarriage of justice will not occur if the appeal is not heard. The threshold for leave to bring a second appeal is not met.
Result
The application for extension of time to seek leave to appeal is granted.
The application for leave to bring a second appeal is declined.
Solicitors:
Zindels, Nelson for Applicant
Crown Law Office, Wellington for Respondent
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