Moore v Police
[2018] NZHC 181
•19 February 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-469
[2018] NZHC 181
BETWEEN SHANE MOORE
Applicant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 19 February 2018 Appearances:
Appellant in person (P H H Tomlinson granted leave to withdraw) M Mortimer for Respondent
Judgment:
19 February 2018
(ORAL) JUDGMENT OF LANG J
[on application for leave to appeal against conviction]
MOORE v NEW ZEALAND POLICE 2 [2018] NZHC 181 [19 February 2018]
[1] Mr Moore was convicted of common assault after a defended hearing in the District Court on 30 November 2010. An associated charge of theft was either dismissed or withdrawn at or about the same time.
[2] On 10 March 2011, Mr Moore was sentenced to 250 hours community work and nine months supervision. He was also ordered to pay an emotional harm reparation payment in the sum of $250 to the victim of his offending.
[3] Mr Moore now seeks leave to appeal against his conviction. He says that a combination of circumstances prevented him from presenting his defence when the charge was heard. He therefore says a miscarriage of justice has occurred, and that the conviction should be set aside.
Relevant principles
[4] Mr Moore did not file his appeal against conviction until 4 December 2017. As a result it is nearly eight years out of time. He therefore requires leave to appeal against conviction.
[5] The principles that govern an application for leave to appeal against conviction out of time are well-established. The Court is required to consider the length of the delay and the reasons for it, whether or not any prejudice will be caused to the respondent if a re-trial is ordered, whether the liberty of the appellant is at risk if the appeal is not heard and the impact of the continuing conviction on the administration of justice.1 One of the most important policy principles in this area is the principle that there needs to be finality of court decisions. Any decision that is the subject of appeal many years after a conviction raises obvious difficulties for all concerned.
Background
[6] The incident giving rise to the charge occurred whilst Mr Moore was a passenger on a Metrolink bus. The prosecution case was that Mr Moore verbally abused several schoolchildren on the bus. When the bus driver intervened, Mr Moore is said to have become involved in an altercation with him. This culminated in Mr Moore grabbing the driver by the jacket and pulling him off the bus. He is then
1 O’Sullivan v R [2016] NZCA 204 at [20]; R v Lee [2006] 3 NZLR 42 (CA) at [99].
said to have punched the driver at least eight times with a closed fist. This resulted in the driver receiving a black eye and a cut to his forehead.
[7] Mr Moore says he was prevented from putting forward a defence because, at the time of the defended hearing, he was recovering from a violent assault by an intruder to his home. This resulted in him being unable to instruct his counsel to advance a defence based on self-defence. Mr Moore’s version of events is that he was attacked by the bus driver and that he responded only to protect himself from that attack. He therefore says that the assault on the bus driver was justified
Decision
[8] There are obvious hurdles in Mr Moore’s path. The first is that the delay has been extremely lengthy. Nearly eight years have now passed since the incident giving rise to the charge. Any retrial would inevitably involve difficulties in locating material witnesses. The passage of time would also inevitably have resulted in the dimming of memories.
[9] Secondly, Mr Moore explains that the delay in lodging the appeal has occurred because of difficulties he has faced over the years. These include being required to live in a mental health institution. He says these issues have prevented him from acting before now. I accept without reservation that Mr Moore has had issues over the last eight years and these have no doubt been very difficult for him. On the other hand, however, it is difficult to accept he had no opportunity prior to December 2017 to revisit the present conviction if he genuinely wished to do so.
[10] The next factor relevant to the present application is the effect of the conviction on Mr Moore. As I have already observed, he was originally sentenced to a term of supervision and a sentence of community work. In December 2010, the Corrections authorities sought to cancel these sentences because of issues with Mr Moore in completing them. He had provided medical evidence indicating he could not complete a sentence of community work. Issues had also arisen in relation to the sentence of supervision. For that reason applications to cancel both sentences were lodged in the Manukau and Hastings District Courts or in about January 2011. Mr Moore had moved to reside in the Hawkes Bay area by that time.
[11] The applications were ultimately dealt with by Judge Mackintosh on or about 10 March 2011. By that stage the Judge had the benefit of a psychiatric report dated 9 March 2011. Acting no doubt on the basis of issues raised in that report, Judge
Mackintosh cancelled the existing sentences and made a community treatment order under s 34(1)(b)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. Mr Moore has now completed the treatment required by that order. He is therefore no longer at risk of further sanction as a result of the offending.
[12] I note, however, that Mr Moore’s criminal history still records that he received the sentences of community work and supervision. I direct that this judgment is to be forwarded to the Registrar of the District Court so that the appropriate administrative steps can be taken to amend Mr Moore’s record so that it shows the correct outcome of the sentencing process. He has completed making the reparation payments and that aspect of the matter does not need to be revisited.
[13] Ultimately, and with that reservation, I am not persuaded that the interests of justice require leave to be given to Mr Moore to pursue this appeal. The delay has been so great that the prejudice to the prosecution would in my view be too great to overcome. Secondly, there is a very real need for this matter to now be at an end. In this context the principle that there needs to be a finality to litigation is to the forefront.
Result
[14]The application for leave to appeal is dismissed.
Lang J