Penrose v Police

[2013] NZHC 3415

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2013-416-10 [2014] NZHC 3415

BETWEEN  DESMOND PENROSE Applicant

ANDPOLICE Respondent

In Chambers:           On papers

(At Wellington)

Counsel:                  B J Hunt for Applicant

K Laurenson for Respondent

Judgment:                18 December 2013

JUDGMENT OF THE HON JUSTICE KÓS (Application for leave to appeal to the Court of Appeal)

[1]      On 22 October 2013 I dismissed Mr Penrose’s appeal against summary conviction in the District Court on charges of male assaults female and speaking threateningly.

[2]      The exact circumstances are set out in my judgment of 22 October 2013.1   In short, there was an argument between Mr Penrose and his girlfriend, in the presence of two house-guests.  Mr Penrose took his girlfriend by the throat and said “watch yourself, you don’t want to mess with me, I could snap your neck”.   Mr Penrose admitted holding the complainant by the neck, and making that statement.   The complainant gave evidence of these events.  She said she was frightened by them. The two house-guests also gave evidence.  It confirmed the complainant’s evidence. It described the complainant being forced onto her toes, with her eyes bulging.  One

of the guests called the police.

1      Penrose v Police [2013] NZHC 2757 at [2]–[10].

PENROSE v POLICE [2013] NZHC 3415 [18 December 2013]

[3]      In this application Mr Penrose seeks leave to appeal further, to the Court of Appeal, on the basis that there is an important question of law as to whether the trial Judge  gave  him  adequate  opportunity  to  obtain  legal  representation.    At  trial Mr Penrose represented himself.

Appeal and trial below

[4]      The sole ground of appeal advanced in Mr Penrose’s formal notice of appeal

was that the conviction was “against the preponderance of the evidence”.

[5]      However, in oral submissions before me Mr Penrose ranged beyond that.  His principal complaints were that he had not had a fair opportunity to prepare a defence, that the Judge was biased, and that he lacked a full and complete transcript of the hearing. Those process complaints ultimately I dismissed.

[6]      Neither formally nor with any real vigour did Mr Penrose pursue the ground that he now seeks leave to appeal to the Court of Appeal on.  That concerned his lack of legal representation at the trial.  Neither at the trial nor the appeal was Mr Penrose represented.   He had previously been represented, but he had become dissatisfied with his representatives (over a “conflict of interest”) and parted company with them.    (Ms  Hunt,  for  Mr  Penrose,  says  that  his  former  counsel  had  simply “withdrawn informally”. That is not what Mr Penrose told me, however.)

[7]      Having  read  carefully  the  District  Court  trial  transcript  –  including  the extended passages of dialogue between the Judge and Mr Penrose that had also been transcribed – I described those exchanges relevant to this proposed point of appeal thus:

[35]      Secondly, the lack of legal representation of the appellant was noted, and the subject of some discussion.   According to the prosecutor, shortly after his last bail variation (30 April 2013) the appellant’s solicitors advised the Crown Solicitor’s office they were no longer acting for him.  It seems he had parted company with his solicitors because of perceived conflicts of interest in relation to the complainant.  Later there was more dissatisfaction when a wrongly-transcribed bail address turned out to mean the appellant had been bailed to a non-existent bail address on 30 April 2013.  As a result he was arrested for breach of bail and held in custody prior to trial.   It appears therefore that the appellant and his solicitors parted company at the

beginning of May, two to three weeks before trial.  The appellant told the

Judge:

As they were the largest solicitors in Gisborne, I did not really have a great deal of faith in going to another solicitor, which is why I stand before you representing myself.

...

[37]     Fourthly, there was a lengthy exchange in which the prospect of adjournment of the fixture was raised.  Principally by the Judge, it has to be said.  A key issue for the appellant was whether he would get bail in that event, and available bail addresses were discussed.  At page 10 of the notes, the Judge asked the appellant whether he wanted to go through with the hearing or wanted more time to prepare.   At page 13 the appellant, ascertaining the Judge would consider a bail application, said he  would prefer to postpone the hearing.  That was repeated at page 15.  At page 19 difficulties the appellant faced in finding a suitable bail address (bail conditions precluded contact with the complainant) led the appellant to abandon his adjournment application. The appellant said:

But let’s save the issue and let’s move the matter forward and I would ask that we move forward and actually deal with the hearing today.  I don’t want this to drag on any longer than necessary.

Disclosure was rectified at the hearing. At page 23, the Court again enquired as to whether the appellant was now happy to proceed on with trial.  The appellant replied, at page 24:

I would be happy to proceed because I’d like to see the end of this matter.  It has been carrying on for far too long.  It’s a rather silly matter as you will hear ...

Then again, also on page 24, the Court again asked, “now, having received all of this disclosure, do you wish to proceed today or do you want more time?” To which the appellant replied:

No I would like to proceed today because I would like to see the end of it.

[38]     The appellant may not approbate and reprobate on appeal.  Having elected to proceed, both without counsel and with late disclosure, he cannot now reverse tack.  I am satisfied that in doing so, despite repeated invitation by the Judge not to proceed that day, he made an informed choice to proceed and that there has been no breach  of his rights under s 24 of the New Zealand Bill of Rights Act 1990.2

2      Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [79] – [80].

Application for leave to appeal

[8]      Mr Penrose’s application for leave to appeal to the Court of Appeal remains to be determined under s 144 of the Summary Proceedings Act 1957.  That requires that:

(a)      there is a question of law;

(b)      it is capable of serious and bona fide argument; and

(c)       by reason of its general and public importance or for  some other reason, it ought to be submitted to the Court of Appeal for decision.

[9]      The question of law proposed for appeal in this case is as follows:

Whether the learned District Court Judge adequately gave Mr Penrose the opportunity to obtain legal representation before proceeding with the defended hearing on 21 May 2013 and convicted him.

Submissions

[10]     For Mr Penrose, Ms Hunt submits that the person charged with an offence has a right to legal representation.3     It is an aspect of the right to a fair trial, an absolute right.4   Ms Hunt cites the following passage of the decision of the Supreme Court in Condon v R:

[79]     So the appropriate question in a case like the present is whether the accused’s lack of the proper opportunity to have legal representation made or contributed to making the trial, looked at as a whole, unfair so that there has been a substantial miscarriage of justice. In our view, the High Court of Australia in Dietrich was right to conclude that in the great majority of cases, that is, other than in exceptional circumstances, an accused who conducts his or her own defence to a serious charge, without having declined or failed to exercise the right to legal representation, will not have had a fair trial. That is the reason why s 30 of the Sentencing Act exists, with its policy of ensuring that those facing imprisonment if convicted are afforded the opportunity of being represented by a lawyer. Where, in the absence of waiver or forfeiture as explicitly contemplated by Parliament in subss (2) and (4) of s 30 of the Sentencing Act, legal counsel was not available at trial there will have been a breach of one or more of the subsidiary rights in s 24 of the Bill of Rights and prima facie an unfair trial will have resulted from

3      Sentencing Act 2002, s 30; New Zealand Bill of Rights Act 1990, s 24.

4      Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [77].

that breach. The conviction will then be quashed unless the Crown is able to satisfy the appeal Court that the trial was actually fair in terms of s 25(a). The conclusion that the trial was fair is not one to which a court will easily be drawn.

[11]     Ms Hunt submits that the District Court Judge did not adequately ascertain whether Mr Penrose had declined or failed to exercise his right to representation, because  he  had  assumed  that  s  30  only required  legal  representation  following conviction but prior to sentencing if there was a prospect of imprisonment.  Ms Hunt accepts that the Judge did not in fact breach s 30, because of course he did not impose a sentence of imprisonment.   The sentence imposed on Mr Penrose was a very moderate one: 150 hours community work on the male assaults female charge, and 50 hours on the threatening charge (the two terms being concurrent).

[12]   It is said by Ms Hunt that the Judge, having been concerned at the appropriateness of the community based sentence given Mr Penrose’s then intention to return to the United Kingdom, had “removed his jurisdiction to impose a sentence of imprisonment”.   She submits that the broader point the appeal would seek to establish is that it is essential for representation considerations to be properly applied to trial, not just at the sentencing stage.  The Judge here, having seen Mr Penrose’s advocacy on his own behalf during trial, decided that he was not “equipped” to represent himself on sentencing.

[13]     For the Crown, Ms Laurenson submits that even if the proposed question is properly one of law, the question is not one of general and public importance and ought not be submitted at the Court of Appeal as it does not arise on the facts of this case.  Ms Laurenson accepts that the defendant has a right to legal representation and to  a  fair  trial.    But  she  submits  that  on  this  case  it  is  clear  that  an  adequate opportunity to obtain representation  was obtained.   There was (as the appellant accepts) no breach of s 30, because there was no sentencing of Mr Penrose to imprisonment.  If wider guidance on the application of s 30 is required, it should be given in the case where s 30 in fact has (or arguably has) been breached.

Discussion

[14]     I will put to one side the fact that the point was not taken, except orally and briefly, on the original appeal. That point I disregard.

[15]     The application for leave to appeal is however dismissed, for the following reasons.

[16]     First, I remind myself that, as the Court of Appeal said in R v Slater,5  s 144 was not intended to provide a second tier of appeal from decisions of the District Court.  Such proceedings are to be brought to finality in the High Court, save in the exceptional circumstance where s 144 applies.

[17]     Secondly, I have considerable doubts that the question posed is really one of law.   And if it is, whether taken as a whole it can be one of general and public importance.  The obligations cast by ss 24 and 25 of the New Zealand Bill of Rights Act 1990 have been analysed at length in Condon v R and in Clark v Registrar of the Manukau District Court.6    The question posed by Mr Penrose is an intensely fact- specific one: whether in the circumstances of this case, with the extensive dialogue between Judge and accused, an adequate opportunity was given for Mr Penrose to obtain  legal  representation.    Resolving  that  question  will  not  add  usefully  to

jurisprudence on ss 24 and 25 representation rights and obligations generally.   At least not to the extent that a further appeal right is justified.  I note also that there was no actual breach of s 30 in this case.  Mr Penrose accepts that to be so.

[18]     Thirdly, the Judge in the passages described above more than fairly gave Mr Penrose the opportunity to obtain representation.   Rather, then, this is a situation where [80] of Condon v R applies:

In contrast, if the accused makes an informed choice to go to trial without a lawyer, was rightly refused legal aid, or by conduct creates a situation in which, on a proper balancing of the various interests, further delay of the trial is not to be tolerated, there would have been no breach of the s 24 rights.

5      R v Slater [1997] 1 NZLR 211 (CA) at 215.

6      Clark v Registrar of the Manukau District Court [2012] NZCA 193, (2012) HRNZ 498.

Mr Penrose appeared twice before me.   In the course of those appearances it was apparent to me that he is a highly intelligent, confident and articulate individual.  He is  a  broadcaster  by profession.    He  was  entirely capable  of  making  a  rational, informed decision to go to trial without legal assistance.  The evidence was not that his previous solicitor had withdrawn informally, but rather that by reason of dissatisfaction Mr Penrose had discontinued his retainer.  He made a decision not to seek  another solicitor.    He was  given opportunity to  obtain  an  adjournment,  to address both disclosure and representation issues, on a repeated basis.  He declined those invitations.  In terms of meeting Mr Penrose’s reasonable civil rights under the New Zealand Bill of Rights Act 1990, I do not think the Judge could have done more.

[19]     Finally, I note that the evidence of assault and threat in this case was entirely overwhelming.  The complainant was called to give evidence, gave evidence that she was assaulted and the subject of the threatening statement, and that it frightened her. Her evidence was not at the end of the day essential, because consistent and independent evidence of these events was given by the house-guests (one of whom had called the police).  To compound matters (although it did not add materially to the prospect of conviction at that stage) Mr Penrose gave evidence in which he admitted the threatening statement (but sought to excuse it on the wholly absurd basis that it was an “endearment”) and admitted (to some extent at least) holding the complainant by her throat.

[20]     In all these circumstances the proposed “question of law”, if such it is, is neither capable of substantial bona fide argument, and nor is it one of general or public importance.

Result

[21]     Application for leave to appeal dismissed.

Solicitors:

Crown Solicitor, Gisborne for Respondent

Stephen Kós J