Price v The Queen
[2013] NZCA 539
•5 November 2013 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA382/2011 [2013] NZCA 539 |
| BETWEEN | DAVID JOHN PRICE |
| AND | THE QUEEN |
| Hearing: | 24 September 2013 |
Court: | Ellen France, Priestley and MacKenzie JJ |
Counsel: | R M Gould for Applicant |
Judgment: | 5 November 2013 at 10 am |
JUDGMENT OF THE COURT
The application for an extension of time to appeal is dismissed.
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REASONS OF THE COURT
(Given by MacKenzie J)
The applicant was convicted following trial before Judge Callaghan and a jury in the District Court at Christchurch in June 2007 on a charge of forgery. The applicant’s notice of appeal was not filed until June 2011, almost four years out of time. The applicant seeks an extension of time. The application to extend time is to be determined separately from the proposed appeal.[1]
[1]Price v R CA382/2011, 11 May 2012 (Minute of Ellen France J).
The charge of forgery arose out of a dispute between the applicant and his sister over the transfer and sale of a motor vehicle. His sister filed a claim with the Disputes Tribunal over the matter. At the Disputes Tribunal hearing, the applicant produced a document purporting to be signed by his sister. She denied that she had signed the document, and the signature was subsequently proved to be a forgery. The applicant accepted at trial that the signature was not genuine. His explanation was that his sister had deliberately falsified her signature to set him up.
This Court’s approach to applications for an extension of time to appeal was articulated in R v Knight[2] and reaffirmed in R v Lee.[3] The touchstone is the interests of justice in the particular case. The interest of society in the final determination of litigation is a powerful consideration. That must be balanced against the interests of the individual applicant in having the conviction reviewed, having regard to the overall interests of justice. Factors relevant to that balancing exercise include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.[4]
[2]R v Knight [1998] 1 NZLR 583 (CA) at 587.
[3]R v Lee [2006] 3 NZLR 42 (CA) at [102].
[4]At [99].
The applicant must provide sufficient information on the reasons for the delay to enable the Court to determine whether it is in the interests of justice for leave to be granted.[5] Where the applicant fails to provide a satisfactory explanation for the delay, the only ground on which the delay could be overlooked is if the proposed appeal is overwhelming on the merits.[6]
[5]R v Davis [2007] NZCA 577 at [13] cited in R v Tohu [2008] NZCA 89 at [24].
[6]R v Latifi [2007] NZCA 372 at [4] cited in R v Tohu at [24].
The explanation given by the applicant for the delay is sparse. The applicant has filed an affidavit in support of the application. That addresses matters relating to the conduct of the trial. It gives no explanation for the delay in filing the notice of appeal. Mr Bamford, a lawyer instructed by the applicant after he was convicted, has written to the Court to provide a brief explanation for the delay. We have taken that explanation into account, without requiring it to be put in affidavit form.[7] Mr Bamford says that the applicant approached him in 2007 expressing a desire to appeal. Mr Bamford suggested that he arrange for the file held by trial counsel to be forwarded to him so that he could review it. Mr Bamford subsequently spoke to trial counsel and obtained copies of some documents from her but does not recall ever receiving the file. Mr Bamford drafted a pro forma notice of appeal, but did not then file it. The applicant went about obtaining as much of the proposed additional evidence as he could. He also prepared a draft affidavit outlining a detailed history of all events. That was worked on and updated over an extended period of time by the applicant, Mr Bamford and a law clerk employed by him. That contained much material that Mr Bamford felt was irrelevant but which the applicant insisted should be included. Mr Bamford and his clerk also spoke to witnesses and affidavits were prepared for them. That process continued over the period from 2009 until 2011 when the notice of appeal was filed.
[7]After the hearing, the appellant, through his counsel, sought to have the letter submitted in affidavit form. However, as the matter had been dealt with at the hearing on the basis of the letter we did not consider it necessary to require an affidavit.
This recitation of the delay speaks for itself. The delay is very long. There is no satisfactory explanation of why the steps could not have been undertaken more quickly than they were. The reasons given are quite inadequate and cannot outweigh the interest of society in the final determination of this litigation.
In her submissions, Ms Gould attributes the delay in part to the loss of trial counsel’s file during the first Christchurch earthquake in September 2010. She submits that it was subsequently recreated before being sent to Mr Bamford and that it is likely that some documents were lost.
We do not accept that as a sufficient explanation for the delay. Mr Bamford says that he suggested in 2007 that the applicant arrange to have trial counsel’s file sent to him for review. Mr Bamford says that he subsequently spoke to trial counsel and obtained copies of some documents from her, but does not recall ever receiving the file. The first earthquake was some three years after Mr Bamford was instructed. Mr Bamford does not say that his work was hampered or delayed by the unavailability of material from trial counsel’s file. There is accordingly no evidence to support the proposition that the delay is explained adequately, or at all, by the earthquake.
In those circumstances, the delay could be overlooked only if the proposed appeal is overwhelming on the merits. Mr Price’s initial concern, after the trial, was that he had additional relevant evidence (damaging to his sister’s credibility) which was not produced. Mr Bamford said that his view was that it was unlikely to be sufficient to persuade this Court that there had been a miscarriage of justice and that his trial lawyer had been wrong in not introducing that material at trial. Mr Bamford’s view, although he may not have conveyed that in clear terms to Mr Price, was that his prospects of success were very small.
Ms Gould now submits, as the proposed first ground of appeal, that the trial Judge intervened on some occasions during the examination of witnesses for both Crown and defence. She acknowledges that these interventions were often of assistance to the defence but submits that during re-examination of the complainant, the Judge intervened to clear an inconsistency which the witness was unable to explain and so may have improperly undermined the defence that the complainant was unreliable and not credible.
The intervention did not relate to a point which could have significantly impacted on the complainant’s credibility. We are satisfied that this ground of appeal falls well short of being overwhelming on its merits.
The proposed second ground of appeal relates to a failure by trial counsel to call a witness who had been in the original Crown witness list but was not called by the Crown. That witness was the manager of the motor vehicle dealership involved in the sale of the motor vehicle. It is said that his evidence confirms the poor state of the vehicle at that time.
That evidence was of very marginal, if any, relevance to the issue at trial, namely whether Mr Price forged his sister’s signature. The state of the motor vehicle had nothing to do with that question. The evidence is not fresh and could have been called at trial. This ground is also very weak.
For these reasons, we are satisfied that the merits of the proposed appeal are not so overwhelming that we would overlook the very long period of delay.
A further relevant consideration in the overall balancing test is whether the liberty of the subject is involved. That does not arise. The applicant was sentenced to 200 hours community service. Other relevant factors are the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown. There would be likely to be some impact on the witnesses, and potential prejudice to the Crown case if this matter were revived now, six years after trial.
For these reasons we are satisfied that the test for granting an extension of time is not met. The application for an extension of time to appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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