Moore v Police

[2018] NZHC 879

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-334

[2018] NZHC 879

BETWEEN

SHANE THOMAS MOORE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	1 May 2018
Appearances:	P H H Tomlinson for Appellant M Mortimer for Respondent
Judgment:	1 May 2018

ORAL JUDGMENT OF JAGOSE J

Solicitors:

Peter H H Tomlinson, Auckland Meredith Connell, Auckland

MOORE v NEW ZEALAND POLICE [2018] NZHC 879 [1 May 2018]

Introduction

[1]    On 10 April 2017, Shane Thomas Moore was convicted of one charge of common assault under s 9 of the Summary Offences Act 1986.1 Mr Moore was ordered, under s 110, to come up for sentence if called on over the following six months.2 He was not called on in that time period.

[2]    Mr Moore’s conviction followed his direct discussion with Judge Collins in the Waitakere District Court. After the Judge gave what could be described as an informal sentence indication, Mr Moore begrudgingly accepted the outcome laid out by the Judge, which the Judge took to be his guilty plea.

[3]    Mr Moore now seeks to appeal his conviction. Although he filed the appeal himself, he is represented by new counsel, Peter Tomlinson.

The offending

[4]    The incident occurred at 10am on Sunday, 24 July 2016, at the Glen Eden Baptist Church on Glendale Road, Glen Eden. The events were captured on CCTV, from which the recording and stills were shown to Judge Collins.

[5]    Mr Moore was present at the church with the two victims. He became verbally abusive towards people at the service, and was soon asked to leave the church. As the two victims were leading him out of the building, he continued to verbally abuse them, while knocking containers off a side table and upturning another table.

[6]    Mr Moore then punched one victim on his left cheek, who sustained a small bruise to the cheek. Mr Moore began trying to throw punches at random, none of which connected. When the second victim attempted to stop him, Mr Moore responded by grabbing him by the shirt, causing him to fall to the ground and hitting his head against the door frame. The second victim was left with a bruise and lump on his forehead. Mr Moore was held by the victims until police arrived.

1      Maximum penalty is 6 months’ imprisonment or $4,000 fine.

2      Sentencing Act 2002, s 11(1)(c).

[7]    Mr Moore’s explanation was he had been verbally abused by the victims, and they started attacking him.

Events in the Waitakere District Court

[8]    Mr Moore came before the Court on 10 April 2017 on two charges of common assault under the Summary Offences Act. The matter was set down for a judge-alone trial, which Mr Moore attended with his then counsel, Mr Kidd. Ultimately only one charge of common assault (relating to the punch of the first victim) was withdrawn by the prosecutor, leaving only the other assault charge (relating to the second victim).

[9]    Judge Collins played the CCTV in Court before the trial formally began. The transcript records the Judge saying:

I think, just for the assistance of everybody, what it seems to me that can clearly be seen is that I’m satisfied that the man who first approaches Mr Moore is the person who’s photographed in photographs 3 and 4 of exhibit 1 and who the officer understands to be a Mr Dye. There is then a confrontation, a brief one, between Mr Dye and the defendant and I’m quite satisfied that he first person who I see appear after a female is in the shot is, in fact, the defendant, Mr Moore. It would seem to me that what I’m sure the prosecution would say would be the punch from the defendant to Mr Dye but after that the defendant is seen to attempt to run away and I would think that thereafter, the prosecution would have exceptional difficulties establish that Mr Moore was not acting in defence of himself, albeit that actions on his part has brought about the situation but he might have considerable more difficulty in relation to what's first seen in relation to Mr Dye, Mr Kidd.

With that he took an adjournment until later in the day.

[10]   When trial recommenced, the discussion centred around Mr Moore’s mental state and whether Mr Moore had any possible defence to the charge. On the former, Mr Kidd confirmed his understanding Mr Moore was not suffering from a mental health issue relevant to the trial. But Mr Moore advanced his mental state as a kind of defence:

Now, I was mentally ill when I went to the church after this conspiracy, I’ve been terrorised … and I became mentally ill, I didn’t know what I was doing, and went to that, um, to that church service and I was mentally ill when I was wrongly charged with assault

At other points, Mr Moore suggested alternative – shifting and inconsistent – lines of defence: for instance, he had been assaulted or the incident had never happened at all.

[11]   Mr Moore interrupted discussions between the Judge and Mr Kidd as to the prospect of resolving the matter, on which Mr Kidd had earlier invited the Judge’s input. From that point onwards, the discussion was almost entirely between the Judge and Mr Moore. After some irrelevant discussion, Judge Collins informed Mr Moore:

… we can go on and finish the hearing but in terms of your, overwhelmingly likely that you will be successful in relation to one and you’ve got real problems in relation to the other charge. Now, it seemed to me that if you took responsibility for the first punch that you threw, then I would, what I would do is simply convict you and order that you come up for sentence in six months, and the deal would be you stay out of trouble for the next six months and that would be the end of it.

to which Mr Moore responded “Okay then”. After some further niceties, the Judge asked Mr Moore “are you happy with it if we deal with matters on that basis?” and Mr Moore said “Yes Sir, yeah”.

[12]   The Judge then conferred further with Mr Kidd on the formalities of his suggestion for resolution, and said to Mr Moore:

… what I would really like is for you to walk out of here today and just get on and live as happy a life as you can and so on the basis of your telling me that you’re happy that that first punch that we saw you throw as the man approached you, that you’re guilty of throwing that punch, and then on that basis I would simply direct you that you come up for sentence if you’re called upon in the next six months. You stay out of trouble for the next six months and that’s the end of it.

Mr Moore responded “No conviction in other words?”; the Judge replied “No, there’s a conviction … but there’s no penalty other than that”.

[13]There was then the following exchange:

MR MOORE: Well I can appeal though, haven’t we still got a democracy?

THE COURT: Well you can appeal but, I tell you what, you’d have a lot of trouble appealing what we say on the CCTV.

MR MOORE: Yeah.

THE COURT: It’s a nice day out there, you should be out there enjoying the sunshine.

MRMOORE: Yeah, well, and I understand the corrupt nature of the situation and that I’m going to have to take, take it on the shoulders for something that, that never happened but –

THE COURT: Well, it did happen because we saw it on the CCTV. MR MOORE: Well I’m going to have to go along with it and, um…

THE COURT: See, I don’t think Mr Kidd’s conspired with anybody, I think Mr Kidd has been acting in your best interests, but I can understand you were obviously very badly treated some years ago, I can understand that. You would not have got that letter of apology unless you had been badly treated. But what’s important, as I say, Mr Moore, you’re older than me and it’s –

MR MOORE: No, you can’t do that sort of thing in a free society. My conscience is clear.

THE COURT: Okay, well do you want to deal with it on that basis or do you want to deal with it where it could be –

MR MOORE: Well, I’ll have to, I’ve got no choice. THE COURT: Yes, okay.

MR MOORE: I’m the innocent party.

THE COURT: Right, well that’s it, you are to come up for sentence if called upon in six months, you’re free to go, thank you.

MR MOORE: I understand.

[14]   On balance, having read the whole of the transcript, I take the view Mr Moore very grudgingly accepted liability for the first punch, and as reluctantly accepted the Judge’s proposed resolution. The Judge was entitled to take that as his guilty plea.

[15]   I do not accept Mr Tomlinson’s submission Mr Moore was “railroaded into resolution and not given the option of pursuing his defence”. As I will go on to say, it is not clear what reasonable defence that could be. I accept Mr Moore has a raft of complaints against authorities, but that did not warrant their airing before the Judge.

Application for leave out of time

[16]   Conviction appeals are governed by ss 229 and 231 of the Criminal Procedure Act 2011. Section 231(2) provides for a 20 working day timeline within which a notice of appeal must be filed after the date of sentence. Mr Moore has clearly exceeded this by some margin.

[17]   The Police accept the four and a half month delay does not create any insurmountable prejudice. But neither should leave be granted automatically or lightly. Mr Moore does not provide any reason for the delay in filing, although Mr Moore’s life disadvantages likely provide some explanation.

[18]   In lieu of any specific ground being raised by Mr Moore, I turn to consider what grounds might support his application for leave.

—criticism of counsel

[19]   Early in the trial, Mr Moore indicated to the Judge he wanted to dismiss his counsel. Judge Collins replied the hearing would not be adjourned, Mr Moore would not represent himself, and it may be in Mr Moore’s best interests to retain his counsel. Mr Moore agreed on that course of action.

[20]    Mr Moore now objects to a range of Mr Kidd’s alleged actions and omissions, notably for continuing to act even after Mr Moore did not want him as counsel (and apparently after Mr Moore laid a complaint about him to the Law Society), and for allowing the charges to be resolved without Mr Moore’s consent.

[21]   Mr Moore has not waived privilege in respect of his dealings with Mr Kidd. This Court has held in similar circumstances, “in the absence of evidence disclosing those communications, the Court cannot get to the bottom of the dispute between the appellant and his counsel”.3 Neither can I.

[22]   In any event, appeals predicated on counsel error are focussed narrowly on the question of whether there was a real risk of an error or irregularity on counsel’s part affecting the outcome.4 There is no indication Mr Kidd’s conduct as counsel was objectively unreasonable so as to risk a miscarriage of justice. The trial quickly turned into a Judge-led intervention in which Mr Kidd played only a minor role.

3      O’Sullivan v R [2017] NZHC 2628 at [38]-[42].

4      Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [70].

—conviction not wrongly entered

[23]   A first appeal may only be granted if there is a miscarriage of justice, and must otherwise be dismissed. By ‘miscarriage of justice’ is meant anything “creating a real risk that the outcome of the trial was affected” or “resulting in an unfair trial or a trial that was a nullity”.5 I cannot identify any basis for a different result, or any unfairness or nullity.

[24]   Mr Moore is upset, in retrospect, with how events panned out at his trial. He suggests he did not consent or agree to the Judge’s proposed outcome. As I have indicated, the transcript suggests otherwise.

[25]   Even if there was some irregularity or error in Judge Collins’ approach, I do not see any reason to think the result would be different a second time around. Mr Moore has not advanced any plausible – or even consistent – defence narrative to controvert the CCTV evidence on which Judge Collins based his conviction. Discharge without conviction is not available unless “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”.6 In Mr Moore’s circumstances, there is no evidence of disproportionality as may avoid conviction.

—consideration of discharge or order to come up for sentence

[26]   Section 11(1) of the Sentencing Act makes it mandatory for a sentencing judge to consider granting a discharge or order to come up for sentence (except in presently irrelevant circumstances specified in subs (2)):

11 Discharge or order to come up for sentence if called on

(1)    If a person who is charged with an offence is found guilty, or pleads guilty, before entering a conviction and imposing a sentence the court must consider whether the offender would be more appropriately dealt with by—

(a)discharging the offender without conviction under section 106; or

(b)convicting and discharging the offender under section 108; or

5      Criminal Procedure Act 2011, s 232.

6      Sentencing Act 2002, s 107.

(c)convicting the offender and ordering the offender, under section 110, to come up for sentence if called on.

[27]   Mr Kidd did not formally seek discharge without conviction. However, I take the Judge’s decision Mr Moore would be more appropriately be dealt with under paragraph (c), conviction and ordering to come up for sentence, to be his rejection of the appropriateness of the options in paragraphs (a) and (b), discharge without conviction, and conviction and discharge.

[28]   Mr Tomlinson refers me to Leatinu’u v Auckland Council, in which Justice Courtney observed:7

There is no indication in the sentencing notes or the notes of evidence whether the Judge considered the possibility of a discharge without conviction under ss 106 as required by s 11. Given the lack of any reference to it and the absence of any reference to factors that might have been relevant to consideration of it, I must assume that no consideration was given to the possibility of a discharge without conviction.

That was an appeal against the District Court’s decision Ms Leatinu’u was “convicted and discharged without penalty; the conviction by itself is sufficient”.8 Courtney J went on to find “this is a case in which a discharge without conviction would properly have been granted”.9

[29]   It is unclear s 11 requires serial consideration of each paragraphs (a), (b), and (c). I prefer the view s 11 is met by the Judge’s pre-conviction and sentence consideration of s 11’s alternative (rather than each ss 106, 108, and 110’s options). That is to say, s 11 is met if the Judge considers whether the offender may more appropriately be dealt with by one of those options than by entry of a conviction and imposition of a sentence. On the other hand, in Leatinu’u, overturning the District Court’s decision to convict and discharge suggests more particular consideration may be required.

[30]   However, in Mr Moore’s case, there is “reference to factors that may have been relevant to consideration” of discharge without conviction. They include, after Mr

7      Leatinu’u v Auckland Council [2013] NZHC 3489 at [14].

8 At [12].

9 At [16].

Moore queried with the Judge “No conviction in other words?”, the Judge’s indication there would be a conviction, and the Judge’s request of the prosecutor “maybe just for the record, Mr King, is there any history?”. The history is of a raft of similar low-level offending over thirty years, on the majority of which Mr Moore has been convicted and sentenced. It is unclear from the transcript in what detail that was explored, but the Judge asked “when was the last entry?”, to which the prosecutor responded “Pretty much the same as this, looks like 2015 for a trespass, for a minor matter”. Mr Moore was there convicted and ordered to come up for sentence if called upon in the subsequent year.

[31]   That the Judge clearly turned his mind to such relevant considerations satisfies me – in contradistinction to Courtney J’s finding in Leatinu’u – the Judge was alive to the sentencing option of discharge without conviction.

Result

[32]For those reasons, leave to appeal out of time is declined.

—Jagose J