Ravelich v Police HC Auckland CRI 2010-404-471
[2011] NZHC 874
•21 July 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2010-404-471
BETWEEN BRETT DEAN RAVELICH Applicant
ANDTHE POLICE Respondent
Hearing: 18 July 2011
Appearances: Applicant in person
D C S Morris for respondent
Judgment: 21 July 2011
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 11.30 am on Thursday 21 July 2011.
Party:
B D Ravelich, 259 Karangahape Road, Auckland [email protected]Solicitors:
Crown Solicitor Auckland
BRETT DEAN RAVELICH V THE POLICE HC AK CRI 2010-404-471 21 July 2011
[1] On 19 November 2007, Mr Ravelich appeared for trial in the Auckland District Court on charges of driving with excess breath alcohol, failing to remain for the purposes of undergoing an evidential breath test, and resisting arrest. The charges, summarily laid, were heard by Judge Ryan. His Honour’s reserved ruling was delivered on 22 February 2008. Mr Ravelich was acquitted on the excess breath alcohol charge, but convicted on the remaining two charges. On 28 April 2008, he was fined $150 with costs of $130 on the charge of resisting arrest, and $750 together with costs of $130, on the charge of failing to remain. He was disqualified from holding or obtaining a driver’s licence for two months. He now applies for leave to appeal against his conviction.
Factual background
[2] On the night of 19 November 2006, Mr Ravelich was driving in the vicinity of the intersection of Symonds Street and Karangahape Road in central Auckland. He encountered a police road block, set up in order to conduct random breath screening tests under the breath alcohol legislation. The breath screening device detected alcohol. Mr Ravelich was required to undergo a breath or blood test, or both. He agreed for that purpose to accompany a police officer to what the Judge called the “booze bus”, namely a large passenger vehicle modified for the purpose of processing persons suspected to have been driving with excess breath alcohol.
[3] Judge Ryan found that the applicant then became argumentative and somewhat unco-operative. He did not provide his correct occupation and wrote “Bob” on the first Bill of Rights form, although that was not his name or signature. There was also a fight over the police officer’s pen; the defendant refusing to return it. The Judge found that as a result of his frustration and exasperation, Constable Keith said to the defendant “Don’t be a homo”. Mr Ravelich is homosexual. He became extremely upset, stood up and shouted obscenities at the officer whilst backing away from the table at which he had been sitting, with his hands up.
[4] Mr Ravelich then made his escape from the bus. He was however caught by police officers, handcuffed, and informed that he was under arrest for failing to remain for the purposes of a breath test. When brought back to the bus he continued to yell obscenities at the police, and would not sit down, although handcuffed. There was police evidence that he “kept thrashing around and trying to break free”, to use Judge Ryan’s words.
[5] Ultimately Mr Ravelich was forced to sit on a chair in front of a desk. Apparently because he continued to scream obscenities, another police officer who had been sitting at the front of the bus approached him and kicked him in the genitals, causing significant injuries to his scrotum.
[6] Judge Ryan held that the assault on Mr Ravelich amounted to an unacceptable and excessive use of force, and he accepted the submission of Mr Ravelich’s counsel to the effect that it constituted a breach of both ss 9 and 23(5) of the New Zealand Bill of Rights Act 1990. He found that being kicked in the testicles caused an injury that was, in the language of s 9 “cruel, degrading and disproportionately severe”. He further held that because Mr Ravelich had by then been arrested, the assault on him “ …showed a lack of humanity and disrespect for the defendant’s inherent dignity” for the purposes of s 23(5).
[7] In consequence the Judge held that all of the evidence obtained after the assault ought to be excluded. That included evidence of the level of alcohol in the applicant’s breath; the charge of excess of breath alcohol was accordingly dismissed. But he declined to stay or dismiss the remaining charges. They related to events which occurred before the police assault. The Judge considered that calling someone a “homo” did not constitute a breach of s 23(5) because the “ … days have gone … where a person’s sexual orientation is cause for much concern or reprobation”. Accordingly, Judge Ryan ruled that the statement “don’t be a homo” carried no legal consequences under the New Zealand Bill of Rights Act.
[8] Mr Ravelich did not appeal against his conviction until 29 November 2010, more than two years after the time for appeal expired.
[9] Mr Ravelich had 28 days following the date upon which sentence was imposed, within which to lodge a notice of appeal.1 However, this Court has power to extend the time for the filing of a notice of appeal.2
[10] The Court’s jurisdiction to extend the time for the giving of notice of appeal is unaccompanied by statutory guidelines for the exercise of the discretion. In that respect it is similar to s 388(2) of the Crimes Act 1961, which empowers the Court of Appeal to extend the time for giving notice of appeal. The jurisdiction to extend
time was extensively considered in R v Knight,3 and R v Lee.4 In the latter case, the
Court confirmed earlier observations in Knight to the effect that the over-arching consideration is the interests of justice, arrived at by balancing all relevant factors.5
[11] Factors of relevance to the balancing test will 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.6
[12] By reason of the desirability of finality in litigation, it is incumbent upon an applicant to explain the reasons for the delay and (if necessary), the length of it. Overall, there is an onus on the applicant to show that there exist special
circumstances justifying the grant of leave.7
1 Summary Proceedings Act 1957, s 116.
2 Summary Proceedings Act, s 123(1).
3 R v Knight [1998] 1 NZLR 483 (CA)
4 R v Lee [2006] 3 NZLR 42 (CA).
5 Lee at [96].
6 Lee at [99].7 Cleggs Ltd v Department of Internal Affairs HC Auckland M1032/84, 5 September 1984.
Finality
[13] Mr Ravelich filed an affidavit in this Court, in which he set out certain factual material of relevance to the proposed appeal. Although the affidavit does not directly explain the reasons for the delay, Mr Ravelich confirms that the contents of the affidavit are intended to outline the circumstances which have led him to apply for leave to appeal so late in the piece.
[14] Mr Ravelich is a lawyer. He was admitted to the bar in 2002 and for much of the time since then has earned his living largely as a duty solicitor at the Waitakere District Court. His personal life has not been free of difficulty, in that he has several convictions for drink driving and public disorder matters. There were two convictions for excess breath/blood alcohol and one for careless use of a motor vehicle, all many years ago and long before Mr Ravelich was admitted to the bar.
[15] More recently, in addition to the current offending, he was convicted on separate occasions of excreting in a public place, and of failing to remain for an evidential breath test.
[16] Ultimately, Mr Ravelich’s cumulative offending record came to the notice of the New Zealand Law Society which, through its Auckland Standards Committee, laid disciplinary charges against him. Those charges were heard by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal on 15 March 2011. The convictions for which Mr Ravelich was punishable by imprisonment constituted of themselves disciplinary offences, punishable if the Tribunal was of the opinion that the convictions reflect on his fitness to practise as a barrister or solicitor, or tend to bring the profession into disrepute. The remaining offences were the subject of a charge of conduct unbecoming a barrister. Mr Ravelich pleaded guilty to all charges before the Tribunal.
[17] In a decision given on 29 April 2011, the Tribunal held the charges against
Mr Ravelich to have been proved. He was censured, suspended from practice as a
barrister or as a solicitor from the date of the decision until 16 September 2011, and directed to pay costs. The Tribunal considered that in respect of offences punishable by imprisonment, the charge before it was effectively established by proof of the conviction, without any need to examine the underlying conduct.
[18] He now says the disciplinary proceedings have driven home to him the seriousness of the convictions from which he now wishes to appeal. They have (in part) led to his suspension from practice. But he does not rest the application upon the on-going consequences of the fact of the convictions. The period of suspension now has less than two months to run, and even if leave is granted, any appeal would be heard after Mr Ravelich was entitled to resume his practice. In essence, his position is that he failed to appreciate the significance of these offences at the time of conviction. He says that his private life at the time was somewhat tumultuous. He is now able to understand that he ought to have filed an appeal within the time prescribed.
[19] It is difficult to accord this aspect of Mr Ravelich’s argument any significant weight. He has considerable experience in practice as a barrister in the criminal Courts. Moreover, he has a criminal record of his own going back some 20 years. He must have appreciated the significance of convictions for resisting arrest and failing to remain for an evidential breath test. It may be that over time he has had an opportunity to consider the implications of the convictions, but save for the disciplinary proceedings (upon which he places little reliance), there is nothing concrete which serves adequately to explain the delay. While not of itself fatal, the lack of a proper explanation is, as Mr Morris submits, a factor which tells heavily against the applicant.
The merits
[20] Mr Ravelich wishes to argue on appeal that the expression “don’t be a homo”, found by the Judge to have been used by a police officer, constituted a breach of s 23(5) of the New Zealand Bill of Rights Act of such gravity as to warrant exclusion of all the evidence against him and the dismissal of the charges.
[21] Mr Morris indicates that if the appeal proceeds, the respondent will submit:
(a) the applicant, although detained under the Land Transport Act 1998, had not relevantly been “deprived of liberty” for the purposes of s 23(5);
(b)even if he had been so deprived, the conduct complained of, being mere words, and while offensive:
(i) lacked any physical element; and
(ii)was not materially connected with a physical deprivation of liberty.
(c) even if it was found that the applicant was “deprived of liberty” it would be difficult to accept that the words spoken were truly “inhumane” (even if they were insulting); and
(d)the use of insulting words on their own is unlikely to undermine the inherent dignity of a person which, for the purposes of s 23(5) connotes a lack of physical dignity (as opposed to psychological dignity) given that this section is concerned with “deprivation of liberty”.
[22] There is also of course, the question of whether, even if a breach of s 23(5) was made out, the appropriate judicial response was to rule out the evidence upon which the convictions were based. In the light of the extended analysis of s 23(5) to be found in R v Taunoa,8 it is difficult on cursory consideration to see how the expression “don’t be a homo” would be likely to justify exclusion of the police
evidence.
8 Taunoa v Attorney-General [2008] 1 NZLR 429 (SC).
[23] I accept that Mr Ravelich’s proposed appeal grounds are arguable, but that will not automatically lead to an extension of time for appeal.9 On their own, the merits of the appeal in this case are not such as to point strongly to the granting of leave.
Personal liberty
[24] The seriousness of the case against the applicant and the consequences for an applicant’s personal liberty are sometimes taken into account. That factor is not relevant here however. Mr Ravelich was simply fined.
Balancing
[25] This appeal is out of time by significantly more than two years. Mr Ravelich is a lawyer who practises in the criminal jurisdiction of the District Court. Moreover, he has himself offended against the criminal law on several occasions, and so has an appreciation at a personal level of the administration of the criminal law by the police.
[26] He is not unfamiliar with the detail of the procedure relating to appeals from the District Court to this Court in criminal cases. Mr Morris referred me to a case in
2009 in which Mr Ravelich pursued an appeal against his conviction on charges of offensive behaviour and resisting arrest.10 He chose to abandon that appeal two weeks before the fixture. It cannot be said that he was unaware of his appeal rights.
[27] Mr Ravelich has advanced no convincing reason for the delay in this case, save for a somewhat inchoate explanation which refers to the recent professional disciplinary proceedings in which he was suspended from practice for a period.
[28] The merits of the appeal are not strong. Mr Ravelich must first prove a breach of s 23(5) and then persuade the Court on appeal that the proper judicial
response to an established breach was to quash the convictions. There are obvious
9 Lee at [106]
10 Ravelich v Police HC Auckland CRI 2009-404-050, 9 July 2009.
obstacles in the way of his proposed argument. Further, this is not a case in which the liberty of the subject is involved. Mr Ravelich says it would be a case of general public importance in that the Court would be asked to rule upon an argument that, where the derogatory language of the sort that was employed here is used by the police, it is not in the public interest that they be nevertheless able to secure the conviction of those to whom the words were addressed.
[29] I do not see the case in that light. In my opinion the appeal, if argued, would turn very much on its own circumstances.
[30] I am required to balance the principal factors identified in Knight and Lee. I am not satisfied that, given Mr Ravelich’s experience and background, he has provided a satisfactory explanation for the delay (given especially the fact that during the period of the delay he mounted and then abandoned another appeal against conviction on similar charges).
[31] Neither is there any particularly significant merit in the grounds of the proposed appeal. Mr Ravelich’s liberty is not at stake, neither is his professional and personal reputation. He now has, regrettably a sizeable list of offences involving alcohol abuse and public disorder.
[32] I am bound to take into account the interests of the public in the finality of litigation, and the due administration of justice. In my opinion, the necessary balancing exercise comes down heavily against the grant of leave. I consider this to be a case in which Mr Ravelich, having earlier elected not to appeal, has now simply changed his mind.
Result
[33] For the foregoing reasons the application for leave to appeal is dismissed.
C J Allan J
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