Osborn v Police

[2013] NZHC 1863

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000032 [2013] NZHC 1863

CRAIG CONWAY OSBORN

v

NEW ZEALAND POLICE

Hearing:                   25 July 2013

Appearances:           Applicant in person

P A Currie for Respondent

Judgment:                25 July 2013

JUDGMENT OF PANCKHURST J (RE LEAVE TO APPEAL)

Introduction

[1]      On 11 June 2013 I dismissed an appeal against conviction upon charges of assault with a weapon and Crimes Act assault, but reduced a sentence of two and a half years imprisonment to one of 15 months imprisonment.  Mr Osborn now seeks leave to appeal to the Court of Appeal against the convictions.

[2]      The application for leave to appeal recorded the grounds as:

False witness statement.

Conflict with alleged victim and caption statement.

Police photos inadmissible showed bandages and not the injury.

OSBORN v NEW ZEALAND POLICE [2013] NZHC 1863 [25 July 2013]

There is no evidence to the alleged damage to washing machine.   The witness stated there was moonlight. This is false.

The witness and victim stated Stephen broke the front window of the hut and

the victim in Court stated “I smashed the window with the shovel”.  This is wrong.

Thevictim stated he went to the gate with a sledge hammer.  In his statement he stated he ran behind the caravan with the sledge hammer when the caravan window broke all over the babies seeing Stephen and Craig hide behind

tussock.

The hearing

[3]      At the hearing this morning, however, Mr Osborn focused upon somewhat different grounds.   He said he has filed a complaint to the Law Society about the conduct of counsel who represented him in the District Court (but not on appeal). He alleges incompetency, and that as a result he did not receive a fair trial in the District Court.

[4]      Most of Mr Osborn’s oral submission was directed to the content of a 111 call made by the complainant on the night of the incident.   In essence, Mr Osborn submitted that the information provided by the complainant in the course of the call was at odds with the evidence he gave in the District Court.  Further, he complained that he had not been shown a transcript of the 111 call until recently and, hence, that he had not been in a position to instruct then counsel to pursue any inconsistencies.

[5]      This aspect was not the subject of argument on 11 June 2013, although the adequacy and inconsistencies in the accounts of the complainant, and his partner, were the subject of much argument.  Further, both a recording of the 111 call and a transcript of its contents was produced at the hearing, although by a police officer after the complainant and his partner had given evidence.  How Mr Osborn did not get to see these exhibits is unclear.

Conclusion

[6]      The grounds of appeal advanced in the leave application are entirely factual, and mirror points raised and rejected at the hearing on 11 June 2013.

[7]      The further ground, that the complainant should have been challenged with reference to the content of the 111 call, was not advanced on appeal before me. Moreover, I am in no position to assess the complaint that Mr Osborn was never shown the transcript of the 111 call by his counsel.   I note there was no cross- examination of the complainant concerning any alleged discrepancy between what he told the police on the night and his evidence in the District Court.

[8]      He was cross-examined about whether he had discussed the incident with his partner  after  the  event.    The  complainant  acknowledged  that  he  had.    He  also accepted that these discussions probably influenced his in Court evidence.  This was not surprising, given that the 111 call was made late at night in the immediate aftermath of the incident and before the complainant had properly inspected the property damage in daylight.

[9]      In my view there is no present basis upon which to grant leave to appeal.  The specified grounds of appeal are factual in nature, raise no question of law of general or public importance, or otherwise warrant leave.   And, I am in no position to address the allegation of counsel incompetence.

[10]     For these reasons, leave is refused.

Solicitors:

P A Currie, Christchurch