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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 3415
Decision Date: 18 December 2013

CaseChat Overview and Summary

Desmond Penrose applied for leave to appeal to the Court of Appeal against his conviction for male assaults female and speaking threateningly. The appeal was dismissed by Justice Kós. The primary legal issue was whether the District Court judge gave Penrose adequate opportunity to obtain legal representation before proceeding with the hearing and convicting him. The court held that the question was not one of law, and even if it was, it was not of general and public importance. The judge had provided Penrose with multiple opportunities to obtain legal representation and to adjourn the hearing, which Penrose declined. The evidence against Penrose was strong, making the proposed question of law unlikely to result in a successful appeal. Therefore, the application for leave to appeal was dismissed.

Orders