Palmer v The Queen

[2004] NZCA 185

IN THE COURT OF APPEAL OF NEW ZEALAND

CA140/04

THE QUEEN

v

GRAHAM ASHLEY ROBERT PALMER

Hearing:19 July 2004

Coram:Anderson P
Glazebrook J
Hammond J

Appearances:  R A A Weir for Applicant

A M Powell for Crown

Judgment:16 August 2004 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]       This is an application for leave to withdraw a Notice of Abandonment of Appeal against conviction and sentence in respect of four counts of indecent behaviour with young girls. 

[2]       The behaviour in issue occurred on 28 December 1997 in and about a public lavatory at Turangi.  Several girls, about nine years of age, were inside the cubicle and one was sitting on the lavatory when a man entered, exposed himself and pressed up against the body of one of the girls who all then went outside.  Shortly afterwards the man left the cubicle and touched or attempted to touch two of the girls in their genital area.  The girls did not immediately tell the adults with whom they had driven to the lavatory but they did complain as they were being driven away.  The mother of one child made contact with the Police and the group, along with Police officers, headed for Taupo which was the direction which the vehicle driven by the man had taken.  Mr Palmer and his van were found at Taupo and he was eventually charged with two counts of indecent assault, one count of attempted indecent assault, and one count of wilfully doing an indecent act in a place to which the public had access.  When interviewed by the Police he made admissions establishing that he was the man whom the complainants had encountered but he denied any wrongdoing.

[3]       A committal hearing was held before Justices of the Peace on 3 March 1998.  Mr Palmer was prevented by a motor accident from attending.  He was not represented at that hearing by counsel.  Notwithstanding his absence personally, or by counsel, the Justices appear to have purported to commit to the District Court at Rotorua because they signed a form of committal.  It is not clear, however, whether that form was in fact processed.  Copies of the informations indicate that a warrant to arrest was issued on the same day.  In any event, another committal hearing was scheduled for 10 June 1998 and a committal order was made.  Mr Palmer was absent from that hearing with the leave of the Court and was represented at it by counsel.  Mr Palmer now takes issue over the regularity of the committal on various grounds including the fact that by reason of his absence he was not addressed by the Court, in terms of s 168(1)(a) of the Summary Proceedings Act 1957, to inform him that the Court proposed to commit him for trial but that he may if he so desired plead guilty to the offence charged.  He takes issue with other procedural aspects of the committal hearing but it is to be noted that:

(a)    His absence from the hearing was at his election and request;

(b)    He was represented at the hearing by counsel;

(c)    He took no issue about the regularity of the committal before trial, or indeed after it, for some years;

(d)    His notice of appeal dated 16 March 1999 makes no mention, in the grounds of appeal, of any irregularity of process in relation to the committal.

[4]       Mr Palmer was tried before a District Court Judge and jury at Rotorua on 14, 15 and 18 January 1999, found guilty on all charges and was ultimately sentenced on 11 March 1999 to a total of two and a half years imprisonment.  He has since been sentenced to preventive detention for other sexual offences.

[5]       The grounds of appeal in relation to the trial complain that his evidence in chief was not heard by the jury as the Court microphone had failed, that his counsel failed to call two key defence witnesses in spite of written instructions to do so and that the evidence of a witness was withheld by the Crown.  We cannot address the merits of those grounds because they were not examined in the course of the present application, the focus being, as far as merits go, on the alleged irregularities of committal, the cogency of a defence of alibi, a complaint that the Crown unexpectedly led evidence from a witness who testified to the effect that Mr Palmer had put her up to give the Police a false alibi for him, and a complaint that a direction by the Judge on lies was prejudicial to him because it implied that he had told lies.

[6]       We have to say that the matters put forward by Mr Palmer in his affidavit relating to alibi are more ingenious than convincing.  Indeed, we are unpersuaded that they have any merit at all.  To some extent they examine whether Mr Palmer could have travelled from Turangi to Taupo in the time between the recording by the Police of the adults’ complaint on behalf of the girls and the time the applicant was in fact seen in Taupo.   The explanation lies of course in the fact that the complaint was registered with the Police sufficiently long after the incident occurred for Mr Palmer to reach Taupo in the available time span.  But in any event Mr Palmer’s interview with the Police shows that he was in fact the man who went into the lavatory at Turangi at about the time in question and when young girls were already in the cubicle.  The proposition that there were two different men, drivers of a white van, who had an encounter with two different groups of girls in the same lavatory cubicle at virtually the same time, is preposterous. 

[7]       There is nothing in the complaints about being ambushed by the Crown or the Judge having given a lies direction which would induce us to contemplate granting leave to withdraw a Notice of Abandonment.

[8]       As to the question of the regularity or otherwise of the committal process, we are unimpressed by what is essentially a complaint that, having requested to be represented by counsel and to be absent in person, Mr Palmer was not personally asked whether he wished to plead guilty.  It is not as if he is contending that he would have pleaded guilty, his whole case being that he wishes to be exonerated.  In any event, on an appeal against conviction he would have to satisfy this Court that a miscarriage of justice had occurred through some irregularity of committal process, notwithstanding that he was committed to the correct court, was represented by counsel at the committal hearing and at trial, and raised the present complaint only years later.  There does not appear to us to be a seriously arguable case on the question whether a miscarriage of justice has occurred, even without recourse to the proviso to s 385 Crimes Act 1961. 

[9]       It is in this context of manifest want of merit that we turn to the principles and facts upon which Mr Palmer relies in this proceeding. 

[10]     In 1999 the abandonment of criminal appeals was dealt with by the Court of Appeal (Criminal) Rules 1997, r 29 which provided as follows:

29.Appellant may abandon appeal by notice in writing – (1) An appellant may abandon the appellant’s appeal at any time after-

(a)    Giving notice of appeal or notice of application for leave to appeal; or

(b)    Applying for an extension of the time allowed for giving a notice referred to in paragraph (a).

(2)A notice of abandonment of appeal-

(a)    Must be in form 6; and

(b)    May be signed by the appellant personally or by a solicitor or counsel on the appellant’s behalf.

(3)If the notice is signed by the appellant personally, the appellant’s signature must be witnessed and the witness must add the witness’s address and description after the witness’s signature.

[11]     On 14 October 1999 Mr Palmer wrote from prison to Mr Patrick O’Driscoll, the barrister assigned to him on legal aid for the purposes of his appeal, in the following terms:

Dear Sir,

It would be appreciated if you could notify the Court of Appeal that I wish to abandon the appeal.

[12]     Mr O’Driscoll then wrote to this Court requesting that a Notice of Abandonment form be forwarded to him, and it was.  He arranged for the form to be delivered to the prison where it was signed by Mr Palmer and witnessed by a Mr R E Collins, a receiving officer at Mt Eden Prison, who noted the form accordingly.  Mr O’Driscoll arranged for a barrister, Ms J B Wickliffe, to appear before this Court to advise it of Mr Palmer’s abandonment.  The appeal was disposed of accordingly and a Result of Appeal Notice sent to Mr  Palmer on 28 October 1999.  The position then is that the Notice of Abandonment was correct as to form, was the result of a deliberate decision by Mr Palmer at the time he was represented by counsel, and was obtained from and forwarded to this Court in accordance with his instructions to counsel.

[13]     It is technically possible to withdraw a Notice of Abandonment with leave but the grant of leave will be a rare event because the only justification for the grant of leave by a Court which is essentially functus officio in the matter of an appeal is that the Notice of Abandonment is a nullity.  The test for this is whether the Court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the mind of an applicant did not go with the act of abandonment.  See R v MacKay [1980] 2 NZLR 490, Eschbank v Police (1989) 5 CRNZ 157, 158. 

[14]     The grounds advanced in the present case are as follows:

UPON THE GROUNDS

1.That the notice of abandonment was filed under pressure from counsel at the time (Mr Patrick O’Driscoll) and without proper consideration by the appellant.

2.That new evidence has come to light in respect of Mr Palmer’s attestation of alibi.

3.That in all circumstances it is in the interests of justice that the appeal proceed in light of, but not limited to the following:

3.1   That the first appeal date occurred at a time when the appellant was in the intensive care unit at Auckland Hospital following a major heart attack.

3.2   The appellant was without counsel at this time

3.3   That following a treble heart by-pass operation on 13 July 1999 the appellant was not able to properly recall events and to instruct counsel.

3.4   That between 27 September 1999 and 7 October 1999 the appellant was involved in a High Court trial

[15]     It is the case that at the time the Notice of Abandonment was prepared Mr Palmer’s personal circumstances were inauspicious.  He had recently been convicted on further charges relating to sexual offending; his mother was on the point of death and in fact died the day after the letter was written to Mr O’Driscoll; and Mr Palmer had undergone triple bypass heart surgery only three months previously.  But these matters do not impress us as amounting to a want of knowledge or appreciation of the act of abandonment.

[16]     There is a suggestion in one of Mr Palmer’s affidavits that he decided to abandon the appeal because he thought it would facilitate his request to be transferred to Wanganui Prison where he would be nearer to his terminally ill mother.  The logic of the proposition is not apparent to us.

[17]     Nor having considered Mr O’Driscoll’s affidavit are we satisfied that the decision to abandon was uninformed.

[18]     Undoubtedly the decision to abandon is now regretted, not least because of the relevance of the particular convictions to the imposition of a sentence of preventive detention imposed in respect of the subsequent sexual offending.  Mr Palmer may have been influenced by the advice he received from Mr O’Driscoll.  That seems to have been such as not to inspire optimism, but with good reason as our review of the merits of the appeal above indicates.  Mr Palmer may have thought that he might have a better chance of a transfer to visit his mother if an appeal were not extant, but if so, that goes to his motive for wishing to abandon, not his will. 

[19]     In short, there is no proper basis upon which this Court could grant leave to withdraw the Notice of Abandonment and the application is dismissed.

Solicitors:

Crown Law Office, Wellington