Pepperell v Police

[2016] NZHC 2654

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-485-70 [2016] NZHC 2654

BETWEEN

IAN JOHNATHAN CONRAD

PEPPERELL Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	27 September 2016
Counsel:	Appellant in person H K Goodhew for Respondent
Judgment:	8 November 2016

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is

12 pm on the 8th day of November 2016

PEPPERELL v NEW ZEALAND POLICE [2016] NZHC 2654 [8 November 2016]

[1]      On 21 May 2013 Mr Pepperell was convicted on a charge of male assaults female following a defended hearing.1    The complainant was his former de facto partner, who is the mother of his children.  On 20 June 2013, he was sentenced to

60 hours of community work.  In the meantime, on 11 June 2013, a protection order was issued in favour of the complainant against Mr Pepperell by the Family Court.

[2]      Mr Pepperell now seeks leave to appeal out of time against his conviction. He has completed his sentence.

District Court decision

[3]      The  facts  alleged  by  the  Police  and  accepted  by  Judge  Hobbs  were  as follows.    The  complainant  arrived  at  Mr Pepperell’s  house  to  collect  their  two children.  There was an argument.  As the complainant walked away from the house with the children, Mr Pepperell pursued her.   He grabbed her and pushed her up against a fence and put both hands on her neck.  Evidence was given about this by the complainant herself, and also their daughter, who witnessed the incident.   The daughter’s evidence in chief took the form of her evidential video interview.   She was cross-examined via CCTV.

[4]      Mr Pepperell, in his statement to the Police and again in Court, said that he was acting in self-defence.  He said that the complainant lunged at him and looked like she was going to hit him so he grabbed her by both arms to stop her, and told her not to be such a smart arse.  He said that he did not grab her neck.

[5]      Counsel for Mr Pepperell argued that his daughter had been “brainwashed” by the complainant and was lying in her evidence.  It was also said that she would not have been able to see what occurred due to where she was standing.

[6]      The Judge found that there was no evidence of this and that the daughter was a compelling, coherent and honest witness.  She gave a clear, unprompted account of the relevant events in her Police interview and was able to provide more detail when

pressed. The details were put to her in cross-examination.  She accepted that she had

1      Police v Pepperell DC Wellington CRI-2013-085-426, 21 May 2013.

talked to her mother about the incident; it was expressly put to her in cross- examination that she did not see what had happened but she denied that.  She spoke of both parents fondly.

[7]      The Judge’s finding that the daughter had seen the initial push, then moved away,  turned  back  and  had  seen  Mr  Pepperell  with  his  hands  around  the complainant’s throat was supported by other evidence.  The Judge also referred to photographs taken shortly after the incident which showed bruising on the complainant’s arms and some redness on her neck.  Although the redness was not conclusive, a Police constable gave evidence that the redness she saw at the time was more prominent than could be seen in the photos.

[8]      So the Judge preferred the evidence of the complainant, the daughter, the constable and the photographs over Mr Pepperell’s own account.

[9]      In terms of self-defence, the Judge’s analysis proceeded on the orthodox three step basis.  In terms of the circumstances as Mr Pepperell believed them to be, he noted, but rejected, Mr Pepperell’s evidence that the complainant had lunged at him. And as to the second and third elements, the Judge found that even if Mr Pepperell had been acting in self-defence, the placing of his hands around the complainant’s throat involved excessive force.

The proposed appeal

[10]     Mr Pepperell was self-represented at the hearing before me.  In terms of the criteria for leave to appeal out of time, his principal argument was that the lawyers involved at the time did not advise him of his right to appeal.

[11]     More generally, Mr Pepperell said that the conviction has hung over him, and that there have since been four alleged breaches of the protection order all of which are false and none of which have ever been acted on by the Police.  He says that the complainant lied about the assault.  He has affidavits from two neighbours, Mr Jostl and Ms Stuart, in which they depose that they heard nothing on the day in question. Mr Jostl had expected to be called as a witness at the hearing but was told by

Mr Pepperell’s lawyer that his presence was not required,  and his affidavit was returned to him.

[12]     Mr Pepperell maintains that his daughter was lying, and that she didn’t see the assault at all.  He points to a later interview where she said that “she had never seen daddy hitting mummy”.  He also says that the complainant declined to undergo a medical assessment of her injuries, and she deliberately rubbed her neck to make it red before the photo was taken to support her account.

[13]     Mr Pepperell is in the process of taking steps to have the protection order discharged.   It seems clear that he sees the fact of his conviction as a potential impediment to that.  It is apparent that this is his principal ongoing concern.

Post-hearing events

[14]     As a result of matters raised by Mr Pepperell at the hearing, it was agreed that further inquiries should be made of the PDS as to the existence of any record of Mr Pepperell   being   advised   of   his   appeal   rights   following   his   conviction. Mr Pepperell waived any privilege he might have over the relevant file.

[15]     Those inquiries were inconclusive.   An affidavit was filed explaining that there is no copy of any letter on Mr Pepperell’s file advising him of his right to appeal and the timeframes for doing so.  That is contrary to what has since become standard PDS practice.   I accept that such a letter was not sent, which confirms Mr Pepperell’s position before me.

[16]     Also on the file, however, is a brief file note from his lawyer which suggests that she may have discussed the post conviction options with Mr Pepperell and left it to him to contact her if he wished to follow up on them.  The affidavit also refers to the deponent’s personal knowledge of the experience and competence of the lawyer concerned.

Discussion

[17]     The time for filing a notice of appeal is 28 days,  although this may be extended by leave.2   In assessing whether to grant leave, the overall consideration is the interests of justice of a particular case.3    There are a variety of considerations relevant to the interests of justice; however the essential factors are the length and reason for the delay and the merits of the proposed appeal.4

Length and reason for delay

[18]     As  I  have  said,  Mr Pepperell’s  principal  argument  was  that  he  was  not advised of his right to appeal.   His assertion that the allegations were themselves false has no bearing on this issue; that assertion (which any would-be appellant might no doubt make) cannot, in my view, amount to a special circumstance.

[19]     Even accepting, as I do, that Mr Pepperell was not advised of his appeal rights formally in writing, I do not consider that this constitutes a good reason for the three year delay.  I consider it highly likely that his lawyer at the time did give him that  advice  orally,  but  even  if  she  did  not  I  find  it  impossible  to  accept  that Mr Pepperell (who is both educated and intelligent) would not have made inquiries. Moreover the fact that those convicted of criminal offences have rights of appeal is, in my view, commonly understood in this country.

[20]     In my view the more likely reality is that Mr Pepperell is frustrated at the continued existence of the protection order and it is his desire to be rid of it that is principally motivating his desire to appeal now.  But there are avenues that he can pursue (and is in fact pursuing) in that regard.  I do not think his wish collaterally to attack  the  factual  foundation  for  the  order  constitutes  a  special  reason  or

circumstance warranting the grant of leave.

2      Summary Proceedings Act 1957, ss 116 and 123(1).

3      Isherwood v R [2010] NZCA 347 at [16].

4      Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].

Merit – challenge to factual findings

[21]     If leave were to be granted, the appeal would be by way of rehearing.5   As is well established, the appellate Court is required to reach its own view on the merits of the case, but caution is required when the facts found by the trial Judge required a credibility assessment.6     Factual findings should not be reversed unless there are compelling reasons or exceptional circumstances.7

[22]     Here, the Judge’s decision was principally based on his credibility findings and the corroborative evidence of the constable and the photos.   Mr Pepperell’s contention that his daughter was “brainwashed” would necessarily be very difficult for him to establish.

[23]     There are therefore real hurdles for Mr Pepperell which count against him in terms of the merits of his proposed appeal.

Merit – counsel incompetence

[24]     The  principles  in  relation  to  trial  counsel  incompetence  were  recently reviewed by a Full Court of the Court of Appeal in Hall v R.8   There, the Court drew a distinction between fundamental trial decisions and lesser ones of judgment in which a miscarriage,  and lesser ones involving questions of judgment,  where a miscarriage of justice will arise only “if the decision was not one a competent lawyer would   have   made   and   if   what   occurred   actually   affected   the   outcome”.9

Accordingly, in such cases it is necessary to carefully examine what the instructions to trial counsel were.10   Ultimately the test is whether there has been a miscarriage of justice.11

[25]     There are three issues of trial incompetence raised in the notice of appeal:

5      Summary Proceedings Act 1957, s 115.

6      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4] and

[13].

7      R v Owen [2007] NZSC 102, [2008] 2 NZLR 37.

8      Hall v R  [2015] NZCA 403 at [65].

9 At [77].

10 At [185].

11 At [77].

(a)       the failure to call Mr Jobstl as a witness for the defence;

(b)a  misunderstanding  surrounding  the  decision  to  consent  to  Josie giving evidence by CCTV; and

(c)       a lack of support for his dyslexia and the hurried way the proceedings were conducted.

[26]     Only the  first  of  these  points  was,  however,  advanced  in  Mr Pepperell’s submissions.12    Mr Jobstl’s proposed evidence is contained in two affidavits which were on the Court file.  As I have said, his evidence would have been that he did not hear anything untoward at the relevant time, and generally as to Mr Pepperell’s good character.  The proposed evidence of Ms Stuart is referred to in Mr Jobstl’s second affidavit, and would have been to similar effect.

[27]     Even if Mr Pepperell’s trial counsel did refuse to call this evidence, contrary to Mr Pepperell’s instructions (as to which I make no finding) it is difficult to see that that decision was not one a competent lawyer would have made; evidence of someone not hearing something is unlikely to add anything in the face of eyewitness accounts of the relevant events.  Had the Judge heard from the neighbours he could have believed their evidence but still believed the complainant and Mr Pepperell’s daughter;  it  seems  to  me  most  unlikely that  the  omission  actually  affected  the outcome.

Conclusion

[28]     Notwithstanding the apparent absence of any formal advice to Mr Pepperell of his appeal rights I am not satisfied that leave to appeal three years out of time should be granted. To the extent he was genuinely in the dark about what his options were (which I do not accept) Mr Pepperell had the wherewithal to ascertain them.

The absence of formal advice might justify a short delay but not a delay of three

12     As to the CCTV issue, I note that counsel for the Police referred me to a letter from a different lawyer (acting on instructions from Mr Pepperell’s trial counsel) which records that “after much perusal of the documents provided and earlier disclosure”, Mr Pepperell agreed to his daughter giving her evidence in chief by DVD and cross-examination by CCTV.

years. As I have said, the more plausible explanation is that his desire to appeal now has been prompted by his wish to have the protection order discharged.

[29]     Nor do the merits of the proposed appeal support the grant of leave.  Seeking to undo the Judge’s reasoned credibility findings would be, at best, an uphill battle. The evidence of the two key witnesses was not only mutually supportive but also supported by other evidence.  Similarly, and taking Mr Pepperell’s case at its highest, there is scant basis for any suggestion of counsel incompetence.

[30]     The application for leave to appeal is dismissed accordingly.

“Rebecca Ellis J”

Solicitors:         Crown Solicitor, Wellington, for Respondent

Copy to:           Mr Pepperell