Steele aka Burton v Police HC Christchurch CRI-2011-409-000018

[2011] NZHC 472

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000018

ADRIAN PAUL STEELE AKA ADRIAN PAUL BURTON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         11 May 2011

Appearances: Appellant Appears In Person

D Jackson for Respondent

Judgment:      11 May 2011

ORAL JUDGMENT OF CHISHOLM J

[1]      Following a defended summary hearing the appellant was found guilty of indecent exposure and was sentenced to 50 hours community work.   He appeals against that conviction.

[2]      The  primary  prosecution  evidence  came  from  a  police  officer  who  was cycling home following a late shift.  His evidence was to the effect that as he cycled past the appellant he saw that the appellant’s fly was undone, he noticed a “dark area” in the vicinity of the fly, and formed the view that the appellant was stuffing his penis back into his trousers.  When the officer spoke to the appellant he denied

doing anything wrong.

STEELE AKA BURTON V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000018 11 May 2011

[3]      Two other witnesses gave evidence for the prosecution. They were occupants of  a  shop  that the appellant  was facing (the  shop  was closed).   Although  they identified strange behaviour on the part of the appellant and called the police, they did not give any direct evidence that they had seen the appellant indecently expose himself.

[4]      Unfortunately, part way through the evidence of the third prosecution witness the Court recording mechanism failed.   Consequently there is no record of part of that witness’ evidence, the evidence given by the appellant, or the Judge’s decision which was delivered orally. The only record of the evidence is by way of the Judge’s notes which he has helpfully supplied to this Court.

[5]      Returning to the evidence, as already indicated the defendant gave evidence. Although he now appears in person he was represented by counsel at the summary hearing.  His evidence amounted to a denial of the offending and his explanations were carefully examined by the prosecutor.

[6]      The only information on the file relating to the Judge’s decision is a note on the information sheet that on 29 October 2010 the charge had been proved, the appellant had been convicted, and he had been sentenced to 50 hours community work.   Apart from that there is no record of the decision and understandably the Judge has not been able to assist in this regard.

[7]      In R v Jefferies[1] the Court of Appeal considered the situation where there are no reasons or inadequate reasons for a conviction following a summary hearing.  The Court stated at page 7:

[1] R v Jefferies CA190/99

It follows that faced with an absence of insufficiency for reasons of the decision  of  the  District  Court  the  High  Court  may,  on  hearing  and determining the appeal, adopt whichever of the statutory courses it considers feasible and best calculated to meet the interests of justice in the particular circumstances, those interests including Bill of Rights considerations.  The statutory options are (1) hearing and determining the appeal on the material before the court, including rehearing any part of the evidence and receiving further evidence; (2) directing the District Court to provide adequate and proper reasons; (3) remitting the matter to the District Court for rehearing; and (4) simply quashing the conviction.  That final option will be exercisable

where the  High  Court  concludes  that  the  interests  of  justice  so  require, notwithstanding the other courses available.

Given the total absence of any reasons in this case (which was not of course the fault of the Judge) it is necessary to determine which of the options suggested by the Court of Appeal should be adopted.

[8]      In the present circumstances the first option of determining the appeal on the material before the Court (including re-hearing part of the evidence and receiving further evidence) is unrealistic.  First, this reflects that the record is incomplete and it would be impossible to determine the matter on the evidence and notes as they stand. Secondly, given that issues of credibility are involved, the whole of the evidence would have to be reheard.  Finally, given that the charge is of a summary nature and that this Court is confronting major issues as a result of the earthquake I am not prepared to contemplate what would be effectively a rehearing of a summary matter in this Court.

[9]      As to the possibility of directing the District Court to provide adequate and proper reasons, it is clear that the Judge is not in a position to assist in this way.  In other words it would be futile to refer the matter back.

[10]     In the normal course of events it would have probably been appropriate to remit the matter back to the District Court for rehearing.  However, as discussed with Mr Jackson, the District Court is under enormous pressure as a result of the earthquake.  I am not prepared to add to that pressure by referring a matter of this nature back for rehearing.

[11]     This  means  that  the  fourth  option  will  be  adopted.  However,  as  I  have indicated to Mr Burton he is extremely lucky that this is the outcome.  So the appeal is allowed.  The conviction is quashed and from your point of view, Mr Burton, that is the end of the matter.