Petryszick v The Queen
[2011] NZCA 99
•25 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA269/2008 |
| BETWEEN PETER MORRISON PETRYSZICK |
| AND THE QUEEN |
| Hearing: 22 March 2011 |
| Court: Randerson, Simon France and Lang JJ |
| Counsel: No appearance by or for Appellant |
| Judgment: 25 March 2011 at 2.30 p.m. |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
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REASONS OF THE COURT
(Given by Randerson J)
Introduction
The appellant was convicted in the District Court on 21 November 2007 on one count of assault using a motor vehicle as a weapon. He was subsequently sentenced by the trial Judge, Judge de Ridder, to two years imprisonment. [1] The appeal is against conviction only.
[1] R v Petryszick DC Whangarei CRI-2006-088-1230, 3 April 2008.
This appeal was dismissed by a judgment given on 27 October 2009[2] but the Supreme Court subsequently allowed an appeal, set aside the dismissal and remitted the appeal to this Court for determination in accordance with s 385(1) of the Crimes Act 1961.[3]
[2] R v Petryszick [2009] NZCA 515.
[3] Petryszick v R [2010] NZSC 105, [2011] 1 NZLR 153.
The appeal has had a difficult history and has been outstanding for nearly three years since it was filed in April 2008. The events which led to the initial dismissal of the appeal by this Court have been amply documented and need no elaboration. They include persistent non-compliance by the appellant with directions of the Court.
On 2 March 2011 a Minute was issued by this Court in the following terms:
[1] The appeal in this matter was remitted to this Court for determination by order of the Supreme Court given on 24 August 2010.
[2] A fixture has been made for the hearing of the appeal at 10 am on Tuesday 22 March 2011 at Auckland. The appellant was notified of the fixture by letter of 3 November 2010.
[3] On 7 February 2011, the Registry wrote to the appellant seeking his written response by 14 February 2011 on a number of matters including whether the preparation for the appeal was well in hand and whether any application for an adjournment was contemplated. The appellant was advised that his submissions were to be filed and served by 1 March 2011.
[4] The Registry did not receive any written response from the appellant apart from a telephone call on 25 February 2011 during which he indicated, amongst other things, that “there was no appeal”. No submissions have been received by 1 March 2011 as directed.
[5] This appeal has had a long and troubled history. It has now been outstanding for nearly three years since it was filed in April 2008. Assuming the appellant still wishes to proceed with this appeal, it is in his best interests to retain legal counsel if possible and, in any event, to file and serve written submissions on the Crown at the earliest opportunity.
[6] However, the appellant is advised that unless compelling grounds are made for an adjournment of the appeal, it will proceed on Tuesday 22 March 2011 at 10 am whether or not he has engaged legal counsel; whether or not he has filed written submissions by that time; and whether or not he appears.
[7] For the assistance of the appellant, the casebook of materials and all supplementary materials relevant to the appeal will be sent to the parties by the Registry forthwith. The Registry will also provide details of the location of the Court of Appeal Hearing Centre in Auckland.
[8] If the appellant wishes to raise any matter with the Court prior to the hearing, he should indicate to the Registry and a telephone conference will be arranged. The respondent may also seek a conference if necessary.
A copy of the Minute was sent to the appellant at his Northland address on 2 March 2011 along with all relevant materials prepared for the purpose of the appeal, a map locating the Auckland Court of Appeal Hearing Centre, and detailed instructions on how to access the Court.
No communications were received by or on behalf of the appellant after the issue of the Minute of 2 March 2011 and no submissions were received from him. When the case was called on 22 March 2011 Mr Petryszick did not appear despite the Court waiting until 10.15am in case he had been delayed.
Mr Downs appeared for the Crown and invited the Court to determine the appeal in the absence of Mr Petryszick. We accept that this is the appropriate course.
Background facts
On 30 December 2005 the complainant was riding his bicycle in a cycle lane along Maunu Road, Whangarei. The Crown case was that the appellant was driving in the same direction in his Volvo motor vehicle when he cut in front of the complainant, nearly hitting him. The complainant pointed to the cycle lane and shook his head. The appellant then pulled his vehicle to the side of the road and waited for the complainant. He confronted the complainant saying words to the effect “do you have a fucking problem with my driving?”.
The complainant responded that the appellant had come within 1.5 metres of him when passing. The complainant then proceeded to cycle up the hill at a relatively slow speed. He testified that his bicycle was hit from behind without warning by the appellant’s motor vehicle with sufficient force to throw him off his bicycle. According to the complainant, he was biking in the cycle lane at the point of impact. The Crown contended, on the basis of these facts, that the appellant had deliberately driven into the complainant using his vehicle.
When spoken to by the constable attending the scene, the appellant denied the complainant’s version of events. He said he had stopped his car at the side of the road to answer his mobile phone and the collision occurred. When he began to move off again, the complainant pulled out in front of him. The appellant’s version of events was that the collision was an unavoidable accident. At trial, the appellant gave a similar explanation.
Some doubt was thrown on the appellant’s credibility by evidence from a police officer who inspected the appellant’s mobile phone with the appellant’s consent. The constable’s evidence was that the last recorded phone call was at least an hour before the incident.
An employee of Vodafone gave evidence that there were no calls to or from the appellant’s cellphone between 5.15pm and 5.45pm on the day of the incident. This evidence was not necessarily comprehensive because there was some doubt as to the precise timing of the accident. It was possible it occurred between 5pm and 5.15pm.
As Mr Downs submitted for the Crown, this was a case tailor-made for a jury. Acceptance of the complainant’s evidence permitted the inference of a criminal assault using the motor vehicle whereas reasonable doubt as to the possibility of an accident would have mandated an acquittal.
The grounds of appeal
Two “notices of appeal” were received by the Court on 14 May 2008. The first was a handwritten document which appears to have been signed by the appellant on 7 May 2008. It referred to an attached typewritten document setting out the “basic reasons” for the appeal. It was dated 2 April 2008 and was also signed by the appellant.
Mr Downs has helpfully synthesised the essential grounds of appeal identified in the notices of appeal as follows:
(a)Whether the verdict was unreasonable.
(b)Whether there were errors on the part of defence counsel that caused a miscarriage of justice.
(c)Whether the prosecutor’s closing address involved prosecutorial misconduct.
(d)Whether there were errors in the Judge’s summing up.
(e)Whether there is fresh evidence that should be received on appeal.
Whether the jury’s verdict was unreasonable
It is implicit in the jury’s verdict that the jury rejected the appellant’s account of the incident and accepted the complainant’s evidence. It was plainly open for the jury to do so. We note that the appellant accepted that the complainant had, at some point during the incident, referred to “1.5 metres”. The jury could have interpreted this evidence as tending to confirm that, at some point in the encounter, the complainant remonstrated about the appellant passing too close to his bicycle.
There was also evidence the jury could have relied on in rejecting the appellant’s assertion that he had stopped for the purpose of answering his cellphone. As well, the witness the appellant called to give evidence, a Ms Alderton, contradicted the appellant’s assertion when cross-examined by the prosecutor that the incident may have occurred as early as 4pm. Ms Alderton’s evidence was that it occurred some time after 5pm.
The conduct of defence counsel
The appellant makes a number of criticisms about the way his lawyer conducted his defence. The appellant did not provide a waiver of privilege or an affidavit to support this ground of appeal, contrary to a Minute of Glazebrook J dated 20 June 2008.
In any event, the proposed points are without merit. One contention was that counsel should have challenged the search warrant in relation to the cellphone evidence from a witness from Vodafone. No basis is suggested upon which the warrant could have been effectively challenged but, in any event, for the reasons already identified, the Vodafone evidence was not conclusive.
It was also suggested that counsel should have obtained an audio version of the 111 call made by the complainant and that it could have been played at trial. There is nothing to suggest that this would have assisted the appellant.
None of the other matters raised had any merit.
The prosecutor’s closing address
The appellant claimed that the prosecutor wrongly submitted to the jury that he was a liar and that the defence witness, Ms Alderton, had also fabricated evidence. It is correct that the prosecutor suggested that the appellant had “absolutely made up” his version of events. This was not an inappropriate submission for a prosecutor to make in the circumstances. The prosecutor explained to the jury that even if they rejected the appellant’s evidence, they must still return to the complainant’s evidence to decide whether the Crown had proved the charge beyond reasonable doubt.
In relation to Ms Alderton, the prosecutor did not suggest she had fabricated evidence. Rather, the prosecutor relied on Ms Alderton’s evidence as to the timing of the incident in order to discredit the appellant’s testimony. That was legitimate.
It was also said that the prosecutor misconducted herself by suggesting that the account given by Ms Alderton closely matched the account given by the appellant and that they must therefore have colluded. In fact, the prosecutor did not make any direct allegation of collusion. She rightly pointed out that there was material in the evidence given by the witness and the appellant about cycle lanes which suggested, contrary to the evidence given by the witness, that she may well have discussed the case beforehand with the appellant. There was a proper basis in the evidence for this submission.
The summing up
We are satisfied there is no substance in the suggestion by the appellant that the Judge did not sum up correctly in relation to the burden and standard of proof beyond reasonable doubt. We are also satisfied that the Judge summed up the defence case adequately in this short trial where the issues were abundantly clear. In particular, the Judge directed the jury that the appellant’s defence was that the collision had occurred accidentally and that, if the appellant’s version of events could reasonably be true, then the jury was obliged to acquit him. The Judge also adequately summarised the points made by defence counsel in his closing address.
We are satisfied that the Judge correctly directed the jury in relation to the elements of the offence at issue.
Fresh evidence
In the absence of any affidavit setting out fresh evidence that may have been called or at least some degree of specificity about any such evidence, there is no plausible basis for this ground of appeal.
Other matters
We should also record that there are some broad allegations of corruption by the police in relation to the investigation and prosecution of the appellant. These suggestions seem to focus on whether or not a witness to the incident was available to be called. We believe this was the witness Ms Alderton who was called by the appellant. We are unable to discern how this might have afforded any viable ground of appeal for the appellant.
Finally, the appellant refers in his typewritten notice of appeal to the entire jury pool being prejudiced by the Registrar. There is no evidential basis to support this ground of appeal.
Result
We are satisfied that there are no grounds upon which the jury’s verdict could be successfully challenged. The appeal against conviction is dismissed accordingly.
Solicitors:
Crown Law Office, Wellington, for Respondent
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