Pitiroi v Police

[2012] NZHC 3240

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-463-38 [2012] NZHC 3240

MICHAEL PITIROI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 December 2012

Counsel:         M Dorset for the Appellant

S T Simmers for the Respondent

Judgment:      3 December 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:

Ms M Dorset, Barrister, Rotorua

Mr S T Simmers, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

PITIROI V POLICE HC ROT CRI-2012-463-38 [3 December 2012]

[1]      Mr Pitiroi appeals against his conviction and sentence on a charge of driving a car in a dangerous manner.   His conviction followed a defended hearing before Judge Weir on 3 July 2012.  Mr Pitiroi was fined $750, ordered to pay Court costs and disqualified from driving for a period of eight months.

[2]      The primary point on appeal is that Mr Pitiroi did not have counsel to assist him for the defended hearing and that the hearing in consequence was unfair because he was forced to defend himself.

[3]      There are two questions which arise in terms of the leading decision in this area of R v Condon.[1]   The critical question is whether Mr Pitiroi’s right to a fair trial was met.   There is what may be called the subsidiary question as to whether this right was affected by the fact that he was not represented by counsel.   The legal position is sufficiently recorded by setting out part of the head note to the report of the Supreme Court’s decision in Condon.

There was no absolute right to legal representation but the right to a fair trial was an absolute right. If, because the accused had no lawyer or for any other reason the trial was fundamentally flawed, the accused would not have had a fair trial and the conviction had to be quashed. The provisions of s 30 of the Sentencing Act were an important consideration when a Court had to determine  whether  absence  of  representation  might  have  made  the  trial unfair so as to give rise to a miscarriage of justice. Save in exceptional cases, an  accused  who  conducted  his  or  her  own  defence  to  a  serious  charge without having declined or failed to exercise the right to legal representation would not have had a fair trial. The onus would be on the Crown to satisfy the appeal Court that the trial while conducted in breach of the subsidiary rights in s 24 of the New Zealand Bill of Rights Act 1990 was actually fair in terms of s 25(a) of that Act, a conclusion that a Court would not easily draw. Where the accused had declined or failed to exercise the right to representation the Court still had to examine the overall fairness of the trial, but the onus would be on the accused to persuade the Court that the defence could not, in the particular case, have been adequately conducted without the assistance of counsel …

[1] R v Condon [2007] 1 NZLR 300 (SC); (2006) 22 CRNZ 755.

[4]      Section 30 of the Sentencing Act 2002, referred to in the headnote, is not relevant in this case but has been included in the quote to highlight a point of

distinction.  Section 30(1) provides:

No court may impose a sentence of imprisonment on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, except as provided in subsection (2).

A sentence of imprisonment was not imposed on Mr Pitiroi.

[5]      The position taken for the Police on this appeal is that the only reason that Mr Pitiroi was not represented by counsel is that he did not avail himself of counsel assigned to him on legal aid.   In consequence Mr Simmers, for the respondent, submitted that there is no onus on the Crown to establish that the hearing was fair. Mr Simmers submitted that in any event the hearing was fair.

[6]      Ms Dorset, for Mr Pitiroi, was instructed for this appeal only recently.  The heart of her submission was that there was not a fair hearing because Mr Pitiroi represented himself.   Ms Dorset submitted that a review of the transcript of the defended  hearing  indicates  that  the  absence  of  counsel  resulted  in  unfairness sufficient to make the conviction unsafe.

[7]      In the course of discussions with Ms Dorset it became apparent that she did not have available transcripts of discussions that had taken place at earlier stages of the proceeding when Mr Pitiroi was represented by other counsel.  I will come back to these transcripts.   Because Ms Dorset had not had an opportunity to take instructions on these matters I stood the hearing down to enable her to take further instructions.

[8]      The procedural background is as follows.  The driving offence occurred on

26 April 2012.  The first call was on 16 May when the matter was adjourned to 23

May.  On 23 May the proceeding was adjourned to 6 June for a legal aid application to be made and counsel to be assigned.  The information records that disclosure had been provided except for phone calls to Police Communications and that these were to be provided by 6 June.  It is also recorded that counsel then acting for Mr Pitiroi, Ms Penman, was granted leave to withdraw.

[9]      I will return to the chronology in a moment.  It is necessary to refer to the withdrawal by Ms Penman.   The initial impression from the record was that Ms

Penman had been the first assigned lawyer acting for Mr Pitiroi and that for some unexplained  reason  she  had  withdrawn.    The  significance  of  this  was  that  Ms Penman would therefore be the first of three lawyers to withdraw.  However, this is one of the matters in respect of which Ms Dorset took instructions when I stood the matter down.  Ms Penman had been engaged directly by Mr Pitiroi to assist him in the initial stages and including in making an application for legal aid.  Ms Penman helped Mr Pitiroi to make that application, but at that point neither Ms Penman nor Mr Pitiroi had any control over counsel to be appointed assuming legal aid was granted.   I accept that it is for this reason that Ms Penman was, in a formal way, granted leave to withdraw.   It is not indicative of a decision by Mr Pitiroi which might lead to an adverse inference against him on the question of availing himself of counsel.

[10]     The next relevant procedural event was on 6 June.  This is recorded in one of the transcripts of the Court hearing that were made available to Ms Dorset when this hearing was adjourned for a period.   By 6 June Ms Opai had been assigned as counsel.  In the scheme of things she had been acting at that point for sufficient time to have an understanding of the proceeding and to take instructions.  It is clear from the transcript that Ms Opai on that date sought leave to withdraw because of a conflict between instructions Mr Pitiroi was giving and Ms Opai’s advice to him. However, Judge Weir, who happened to be the Judge dealing with the matter on that date, persuaded Ms Opai to continue acting for Mr Pitiroi in the meantime, and she agreed.  This is relevant to the question as to whether the difficulties Mr Pitiroi has faced in relation to counsel are difficulties of his own making.  The transcript of the discussion in Court on 6 June is also relevant to a later question as to whether there had been adequate disclosure to Mr Pitiroi.  The transcript indicates that by that date

–  6  June  –  there  had  been  adequate  disclosure.   And  I infer  that  Ms  Opai  as experienced counsel was satisfied that she was in the position to conduct a defended hearing.

[11]     The next Court appearance was on 20 June.   The difficulties between Ms Opai  and  Mr Pitiroi had  not  been  resolved  and  Ms  Opai  was  granted  leave to withdraw.  The transcript does not record the reasons.  Ms Opai in fact offered to provide an explanation but Judge Clapham advised that that was unnecessary.  In any

event, with matters of this nature there are always questions of privilege.  I should perhaps have indicated earlier that there has been no waiver of privilege resulting in affidavit evidence from Ms Opai or indeed from the subsequently assigned counsel, Mr Clarkson.

[12]     Mr Clarkson was assigned as the new legal aid counsel very promptly – on

22 June.   Ms Dorset’s submissions record her instructions of some apparent difficulties experienced by Mr Clarkson in obtaining copies of disclosure or getting disclosure.  This is confirmed by a copy of an email from Mr Clarkson to Ms Dorset of 29  November.    Mr  Clarkson  refers to  absence of items  of disclosure in  the material he received.  (I should make clear that I am paraphrasing what he says to a substantial extent.)  However, although some material may not have been provided to Mr Clarkson by Mr Pitiroi it is clear, as I earlier indicated, that there had been adequate disclosure.   I am satisfied that there had been adequate disclosure to competent counsel some weeks before.  I have already referred to that.  I also note that Mr Simmers, following the adjournment when Ms Dorset took further instructions, referred to a Police record of the way in which disclosure was made and when it was made.  This also included reference to transcripts of emergency phone calls that had been made on the *555 number.  These were matters of concern to Mr Pitiroi.   The information available indicates that these were disclosed at an early stage.  Also of relevance is that they are not calls that were relied on by Police to seek to prove the charge.

[13]     The email from Mr Clarkson records that an application for an adjournment was made on 27 June 2012.   Mr Clarkson records that he assisted Mr Pitiroi in making the application with the application being made in Mr Pitiroi’s name.  It is unclear why that should occur in that way when Mr Clarkson was assigned counsel. Mr Clarkson records:

The application was on the basis [that] the hearing was set after the defendant’s previous counsel had been given leave to withdraw, the hearing was set only eight working days after the defendant’s last appearance in Court, the defendant received further disclosure including briefs of evidence and a 111-call [sic] transcript on 27/6/12 and that the defendant sought more time to prepare his defence.

[14]   Mr Clarkson records that Police advised that they did not oppose an adjournment.   However, the application was declined on the papers.   It is clear enough, from everything I have referred to to this point, that the application for an adjournment was declined because of the procedural history and the earlier confirmation from responsible counsel that there had been full disclosure.  I am also satisfied that the Court was justified in declining an adjournment sought on the basis that more time was required to prepare a defence.  I accept that the charge was one that the defendant obviously was entitled to defend.   But it was not a legally or forensically complicated case.

[15]     The defended hearing did then proceed on 3 July.  At the beginning of the hearing, although this is not recorded in the transcript I have, Mr Clarkson was granted leave to withdraw.   Mr Clarkson says in his email: “Being without instructions and as the case was to proceed  I sought and  was  granted leave to withdraw”.

[16]     Against that background I am not persuaded that Mr Pitiroi was deprived of his right to counsel.  Had he approached matters differently counsel was available to him. This includes Ms Opai.

[17]     It  remains  necessary  to  determine  whether  Mr  Pitiroi  got  a  fair  hearing bearing in mind that he then had to defend himself.  This turns on, amongst other things, consideration of the transcript of the hearing and the quality of the evidence in support of the charge.  I am satisfied that there was a fair hearing.  Fundamentally, I am satisfied that there was not an injustice to Mr Pitiroi notwithstanding the fact that he had to act for himself.  It is correct, as Ms Dorset submitted, that numbers of the questions from Mr Pitiroi were less apt than those that might come from a reasonably experienced lawyer.  But matters of that nature did not, in my judgment, create unfairness.  One point of particular concern to Mr Pitiroi, and being a matter on which he was able to give further instructions to Ms Dorset during the adjournment, was whether there could have been a particular type of driving as alleged by the witnesses for the Police.  This related to a part of a road where there was, as I understand it, a barrier in the middle of the road.  A matter of that nature is something well able to be put to witnesses by a person such as Mr Pitiroi and

particularly bearing in mind the obvious intimate knowledge he has of this part of the highway between Turangi and Taupo.  That particular aspect does not come close to indicating the unfairness that would have to be established (or disproved by the Crown if the onus is on the Crown).

[18]     More broadly, during the hearing I am satisfied that the Judge assisted to the extent he could properly assist.  Ms Dorset referred to numbers of interruptions.  I am satisfied that those generally were directed to questions that simply did not assist Mr Pitiroi or the Court.

[19]     There were two central issues on the dangerous driving charge.   One was whether there was driving of a nature which would enable the Judge to conclude that it was  dangerous driving.   This  evidence came  from  three independent  civilian witnesses.   Their evidence-in-chief was  clear and justified the conclusion.   The cross-examination adequately challenged them on these matters.   They remained clear in their evidence.  An argument can often be raised that experienced counsel might have altered the conclusion by a particular line of cross-examination.  I do not think that the skills of counsel should be elevated to a point that three independent civilian witnesses who gave clear evidence-in-chief would be likely to be shown by skilful cross-examination to be plainly in error in their descriptions of driving which occurred in the middle of the day with no difficulties of visibility.

[20]     The other central issue of fact was whether Mr Pitiroi was the driver of the car.  That evidence did not depend upon the evidence of the three civilian witnesses. None of them could identify Mr Pitiroi.  The identification evidence arose from a telephone discussion between one of the witnesses and Police with an instruction from Police that the driver of the car behind the car of concern should put their hazard lights on.  It was this which enabled the Police to identify the car of concern, stop the car and then immediately identify Mr Pitiroi.

[21]     The evidence sufficient to establish the offence was very clear.  I am satisfied that the absence of counsel did not result in unfairness.

[22]     There are technically appeals against conviction and sentence.  For reasons already set out in considerable detail the appeal against conviction is dismissed. There was ample evidence establishing the offence beyond reasonable doubt.

[23]     There were no submissions advanced on the sentence which appears to be well within range.  Accordingly, as a matter of formality the appeal against sentence is also dismissed.

[24]     The  disqualification  from  holding  or  obtaining  a  driver’s  licence  was suspended pending the outcome of the appeal.  Mr Pitiroi drove from his home to the Court.  He needs to get his car home.  Mr Pitiroi intends to drive directly to his home and would expect to be there within three hours or so (the time now being just before

4:00 pm).  Because of this the disqualification which is now to continue will resume

at 10:00 pm today, 3 December 2012.

Woodhouse J