Rowntree v The King
[2025] NZHC 1600
•17 June 2025
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE
CRI-2025-418-3 [2025] NZHC 1600
BETWEEN LESTER MICHAEL ROWNTREE
Appellant
AND
THE KING
Respondent
Hearing: 12 June 2025 Appearances:
Appellant in person
A M Harvey for Respondent
Judgment:
17 June 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 17 June 2025 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
ROWNTREE v R [2025] NZHC 1600 [17 June 2025]
Introduction
[1] Mr Lester Rowntree was found guilty at a Judge-alone trial of common assault, and subsequently discharged without conviction.1 He now seeks leave to appeal that finding of guilt as well as the “emotional harm payment order [pursuant] to an unsought discharge without conviction entered by trial judge at his own discretion”.
[2]Mr Rowntree’s primary complaints are that:
(a)he was not competent to conduct his own defence;
(b)the police investigation was flawed; and
(c)evidence was misinterpreted by the Judge.
[3] There is a jurisdictional hurdle to Mr Rowntree’s appeal, and he also brings his appeal significantly out of time. Mr Rowntree was found guilty of the charge in a decision dated 1 June 2022 and was discharged without conviction on 1 July 2022. For these reasons, Eaton J directed that the application for leave to appeal be heard separately from any substantive appeal. He also invited Mr Rowntree to file submissions on the jurisdictional issue. That has not been done.
[4] As Mr Rowntree frankly acknowledged at the hearing, he was not equipped to respond to technical arguments about jurisdiction. He simply submitted it was in “the interests of justice” and was a “human rights issue” that he be allowed a further chance to prove his innocence, particularly as it seems the victim relied on the District Court’s finding when bringing a claim against Mr Rowntree, as his employer in the Employment Relations Authority.
1 Crimes Act 1961, s 196 — maximum penalty one year imprisonment.
Background
The assault
[5] The victim was an employee of Mr Rowntree at the Stage Coach Otira Hotel. At about 9:30pm on 14 November 2018, the victim was working in the kitchen area of the hotel. Mr Rowntree confronted him about some ducklings the victim was supposed to be looking after while he was away, but which had either died or were in poor condition on Mr Rowntree’s return.
[6] Mr Rowntree yelled at the victim, then pushed him. He grabbed the victim by the back of his head and hit his head into a freezer, causing him to bleed. The victim fell to the ground. Mr Rowntree continued yelling at the victim and the victim eventually pulled himself up a set of stairs and locked himself in a room to call police.
[7] The victim had swelling and busing over his right eyelid, three lacerations to his forehead, and a fractured hip. He was hospitalised for five days.
[8] Mr Rowntree’s version of events at both trials was that the victim was drunk and fell over, causing the injuries. He denies assaulting the victim but admits he was very angry about the treatment of his ducklings.
Procedural history
[9] Mr Rowntree was initially charged with assault with intent to injure. He represented himself and elected a jury trial which proceeded on 28 January 2020. He was found guilty and sentenced to 200 hours community work and ordered to pay
$2,000 in emotional harm reparation.2 Mr Rowntree’s conviction was subsequently overturned by the Court of Appeal for admitted disclosure failures by police.3 A re-trial followed, substantially at Mr Rowntree’s request in order to “prove his innocence”.4
2 R v Rowntree [2020] NZDC 8243.
3 Rowntree v R [2021] NZCA 32.
4 At [4].
[10] He represented himself at a Judge-alone trial and was found guilty of an amended charge of common assault by Judge Rollo on 1 June 2022.5 Judge Rollo subsequently discharged Mr Rowntree without conviction.6
[11] Mr Rowntree filed his notice of appeal on 20 February 2025, and was initially represented by Mr Douglas Taffs on appeal. On 19 March Eaton J issued a minute observing that there was a jurisdictional issue and also there were “significant hurdles for Mr Rowntree to overcome if he is to be granted leave to appeal out of time”.7 Mr Rowntree’s counsel subsequently sought leave to withdraw, which was granted on 2 April.8 Mr Rowntree now represents himself on appeal, as he did at trial.
The appeal
[12] Mr Rowntree’s “particularised grounds of appeal” dated 11 April 2025 are described as follows:
(a)failure to follow proper procedures;
(b)insufficient evidence;
(c)denial of fair hearing;
(d)mischaracterisation of facts;
(e)incorrectly excluding evidence;
(f)new evidence;
(g)ineffective assistance of counsel;
(h)conflict of interest; and
5 R v Rowntree [2022] NZDC 10057.
6 I have not been provided with the sentencing notes but this outcome is not disputed.
7 Rowntree v R HC Christchurch CRI-2025-418-03, 19 March 2025 (Minute).
8 Rowntree v R HC Christchurch CRI-2025-418-03, 2 April 2025 (Minute).
(i)misinterpretation of evidence.
Fresh evidence
[13] Mr Rowntree seeks to provide new evidence on appeal. Specifically he has filed:
(a)An affidavit of Andrew Keenan, sworn 14 November 2024, describing the victim’s alcohol consumption during prior employment in 2017.
(b)A report prepared by Dr Olive Webb, a psychologist, in 2020.
(c)A statutory declaration of Robin Nicholl, a private investigator, dated
28 April 2025 which makes various assertions about alleged deficiencies in the police investigation.
[14] The Court may receive further evidence on appeal if it is in the interests of justice to do so. The evidence is generally required to be credible and fresh.9 However, given the jurisdictional hurdle to the appeal I identify below, I do not need to determine whether this evidence is admissible. I simply note that I have serious doubts about whether any of the evidence can be described as cogent and fresh, such that it would be admitted.
Jurisdiction
[15] The real hurdle to Mr Rowntree’s application for leave to appeal is that there is no identified jurisdiction for him to bring it.
[16] No right of appeal is available under s 229 of the Criminal Procedure Act (the CPA) as Mr Rowntree has not been convicted. As Downs J identified in Cooney v Police,10 the CPA draws a distinction between a finding of guilt and a conviction.11 It
9 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
10 Cooney v Police [2024] NZHC 2562 at [10].
11 See for example s 114(1), which provides that if a defendant is found guilty, the court may convict the defendant.
is the entering of a conviction that provides a right of appeal under the CPA. Downs J further explained that:12
First… the Criminal Procedure Act contains “carefully crafted appeal rights”. Its scheme must be respected. Second, s 25(h) of the New Zealand Bill of Rights Act 1990 does not recognise a right to appeal a determination of guilt. Rather, it provides everyone has the right, “if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both”. Under our system of criminal justice, it is a conviction that carries jeopardy and stigma. Therein lies the importance of the Courts’ ability to discharge a defendant without conviction should the consequences “of a conviction… be out of all proportion to the gravity of the offence”.
There is also no common law right of appeal against decisions of the District Court.13
[17] The alternate jurisdictional pathway open to Mr Rowntree is to frame his appeal as a question of law. The Court of Appeal in Brown v R confirmed that “questions of law”, in the context of s 296 of the CPA, must raise one or more of the following standard errors:14
(a)a misdirection of law apparent in the decision;
(b)oversight of a relevant matter,15 or consideration of an irrelevant matter; or
(c)a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
[18] Of his particularised grounds of appeal, none obviously raise a question of law. The grounds of appeal fall broadly into three categories — allegations of inadequacy in the police investigation, issues relating to Mr Rowntree’s representation of himself, and claims that evidence was misinterpreted or lost by the Judge.
12 At [12], footnotes omitted.
13 Rafiq v Auckland Transport [2022] NZHC 3552 at [31].
14 Brown v R [2015] NZCA 325 at [16].
15 And by this it must be a matter which is before the Court which is overlooked noting Mr Rowntree is of the view there is evidence which could have assisted his defence which was not before the Court because of what he says was a poor police investigation or his own lack of competence to run his defence.
[19] First, Mr Rowntree makes various complaints of the police investigation, supported by the statutory declaration of Mr Nicholl, which Mr Rowntree seeks to have admitted as evidence on appeal. Mr Rowntree says that CCTV was not viewed, the chiller which was allegedly used in the assault was not taken into evidence, and no police investigation took place at the site of the assault at the time. However, these allegations raise no questions of law. The charge must be proved to the requisite standard on the basis of the evidence which is adduced. If there was further evidence available to support Mr Rowntree’s defence, that was for him to raise at the time.
[20] Second, in relation to his representation, Mr Rowntree says he was not competent to conduct his own defence, and a conflict has arisen because his barrister and the prosecutor are family members. Mr Rowntree says he struggled to represent himself properly due to a medical condition. A psychologist report was prepared regarding Mr Rowntree’s competence to represent himself in August 2020. While the report writer considered that Mr Rowntree had not been competent to represent himself at his jury trial, he was subsequently re-tried and elected to again represent himself despite the contents of this report. He does not explain why he did not produce this report in the District Court in 2022. In the absence of more up to date information regarding Mr Rowntree’s fitness at the time of the judge-alone trial in 2022, this ground of appeal could not succeed.
[21] As to the conflict Mr Rowntree alleges, the Crown prosecutor for both trials was Mr Will Taffs. Mr Rowntree was initially represented on this appeal by Mr Douglas Taffs. While he is correct that there is a familial connection,16 Mr Douglas Taffs was only instructed by Mr Rowntree after the charge was found proven. Any possible conflict cannot raise a question of law for the purposes of this application for leave to appeal.
[22] Third, Mr Rowntree says evidence was misinterpreted by the Judge, or alternatively “lost by the courthouse”. He identifies a witness statement and hospital records which he says support his version of events. These challenges are not questions of law unless Mr Rowntree is able to show that the Judge came to a
16 According to the Crown submissions.
conclusion that was unsupported by any evidence. In this case, Judge Rollo carefully assessed both the Crown and the defence case and providing detailed reasons as to why he did not accept the Mr Rowntree’s evidence and version of events. Issues such as the victim’s level of intoxication and his injuries were well ventilated at trial. Mr Rowntree simply disagrees with the Judge’s conclusions on those issues. These complaints do not give rise to a question of law for the purpose of this application for leave to appeal.
[23] As to the “lost evidence”, the statutory declaration of Mr Nicholl suggests that the “lost evidence” is the door jamb of the door Mr Rowntree alleges caused the victim’s injuries. He took the door jamb with him to the Greymouth District Court to produce as evidence. The jamb was taken into the court’s custody during a three-week adjournment, and Mr Nicholl alleges the jamb was lost in that time. He says this deprived Mr Rowntree of the ability to show the court a comparison of the structure of the fittings with the wounds on the victim’s head, and any potential forensic examination to identify blood on the door jamb. This allegation also raises no question of law. Whether the victim was injured by hitting the door jamb or the freezer, the question to resolve was whether the injury suffered was caused by Mr Rowntree assaulting him or the victim tripping and falling. The Judge found as a fact that the assault did occur.
[24] Accordingly, Mr Rowntree’s grounds of appeal raise no question of law and there is no jurisdiction under s 296, for Mr Rowntree to bring his appeal.
Leave to appeal out of time
[25] Notwithstanding that jurisdictional hurdle, Mr Rowntree also brings his appeal significantly out of time and therefore would require leave to appeal if he could establish jurisdiction.
[26] Mr Rowntree filed his appeal on 20 February 2025 against a decision issued on 1 June 2022. Section 298(3) of the CPA requires a notice of appeal to be filed within 20 working days of the ruling that is appealed against. Mr Rowntree’s appeal is therefore approximately two and a half years out of time. In his submissions
Mr Rowntree has not sought leave to appeal nor does he provide a reason for the substantial delay in filing this appeal.
[27] In granting leave to appeal out of time, the primary consideration is the interests of justice, which requires the balancing of society’s interests in the finality of decisions against the interests of the applicant.17 This can be assessed by two questions: first, why the appeal was filed late, and second, what merit the prospective appeal appears to have.18
[28] In his notice of appeal, Mr Rowntree explains “appellant did not appreciate the legal disability of his cognitive impairment at trial and only did so before Christmas of 2024”. However, that reason is at odds with the timing of the report by psychologist Dr Webb into his competence. The report was prepared on 22 August 2020 and addressed to Mr Shamy, his counsel at the Court of Appeal. Dr Webb concluded that, as at the date of the report, Mr Rowntree was not cognitively competent to conduct his own defence. Subsequent to the findings of that report, Mr Rowntree again elected to represent himself at his Judge-alone trial. There is no recent material concerning Mr Rowntree’s competence or any cognitive impairment. He does not explain why he chose to disregard the contents of that report in 2022 but now seeks to rely on them in 2025.
[29] Furthermore, it is clear Mr Rowntree was aware of his rights of appeal. He appealed the outcome of the first trial of the charge and advised me that he told Judge Rollo he was intending to appeal the outcome of the second trial. There is no explanation of why he delayed filing his appeal until now.
[30] As to the merits of the prospective appeal, I have already concluded that there is no jurisdiction to advance a general appeal against a finding of guilt, in the absence of a conviction. There is also no question of law identified and, even if there was, given Mr Rowntree was not convicted I would be reluctant to grant leave after such a lengthy delay. In those circumstances, the interests of justice clearly point against
17 R v Knight [1998] 1 NZLR 583 (CA) at 587.
18 Mikus v R [2011] NZCA 298 at [26].
leave being granted. Furthermore, the victim, having given evidence in two hearings now, is entitled, given the passage of time, to expect finality.
[31]Accordingly, leave to appeal out of time is declined.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
Applicant
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