The Queen v Butcher

[2009] NZCA 545

IN THE COURT OF APPEAL OF NEW ZEALAND

CA391/2009
[2009] NZCA 545

THE QUEEN

v

TONY BUTCHER

Hearing:28 September 2009

Court:Robertson, Chisholm and Priestley JJ

Counsel:Appellant in person

S B Edwards for Crown

Judgment:19 November 2009 

JUDGMENT OF THE COURT

A            Application for extension of time for appealing is granted.

B            The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

The appeal

[1]        In 2009 a jury in the Papakura District Court convicted the appellant of the two counts he faced.  The counts were for car conversion, laid under s 226(1)(a) of the Crimes Act 1961, and driving whilst disqualified, laid under s 32(1)(a) of the Land Transport Act 1998.

[2]        The trial, presided over by Judge McAuslan, lasted two days.  The appellant was represented by counsel, Ms M Mason.

[3]        The appellant challenges those convictions by this appeal.  At the appeal hearing he represented himself.

Background

[4]        The notice of appeal was filed two months out of time, it being filed in the wrong court.  The Crown was not prejudiced by the delay and did not oppose the application for an extension of time which is accordingly granted.

[5]        The alleged offending occurred in November 2007 in Franklin County.

[6]        The appellant had various financial dealings with a finance company, Dolback Finance Limited.  The appellant was the former owner of a property near Tuakau where he lived.  Dolback was the mortgagee.  It had exercised its power of sale under its mortgage. 

[7]        Despite the mortgagee sale (at which the appellant bid) he had to be evicted from the property.  He was served with a Tenancy Tribunal eviction order.  Despite the eviction order and the removal of his chattels the appellant returned to the property. 

[8]        Dolback’s credit manager, Mr W D Hardie, drove to the Tuakau property on 27 November 2007 to investigate.  The Crown case, and Mr Hardie gave evidence to this effect, was that having discovered the appellant on the property, Mr Hardie went outside to contact the police to obtain assistance to evict the appellant.  Whilst Mr Hardie was on his cellphone, the appellant walked out of the house, got into the car Mr Hardie had been driving, reversed at speed down the driveway, and drove off in the general direction of Tuakau and Pukekohe.  The appellant was a disqualified driver at the time.  He had no authority to drive the vehicle.  Mr Hardie made a 111 emergency call as the appellant drove off in the car.  That call featured in evidence.  The vehicle was subsequently discovered later that day in a supermarket car park in Pukekohe.

[9]        Clearly the appellant had strong views over what he regarded as being the onerous terms of his mortgage and finance arrangements with Dolback.  These, despite their marginal relevance, were the subject of considerable evidence at the appellant’s trial.

[10]       The appellant gave evidence at his trial.  It was to the effect that Mr Hardie’s evidence was a total fabrication.  The appellant told the jury that on 27 November he was not at the property and that the first he knew anything was amiss was when the police arrested him.  At the particular time of the offending (just after 9.00 am) the appellant said he had hitchhiked to Pukekohe where he had spent most of that day.

[11]       Clearly the appellant had strong views about the situation in which he found himself.  Something of the tone of the trial is evident in the following exchange during the Crown’s cross-examination of the appellant.

Q.I am putting to you, Mr Butcher, that you were there and you told Mr Hardie that morning that your lawyers would be sorting it out?

AHas Mr Hardie had a psychiatric evaluation?

[12]       Judge McAuslan fairly put the appellant’s case to the jury.  She identified the real issue as being whether the appellant was driving the motor vehicle on the morning in question.  The standard tripartite direction was given to the jury, which included the comment that the material part of the defence evidence was denial of being the driver which, if the jury accepted, would lead to not guilty verdicts.

[13]       The question of hitchhiking obviously intrigued the jury.  They asked one question which was:

Why was [the appellant] hitchhiking into Pukekohe on 27 November and what did he do when he was there?

[14]       The Judge correctly answered this question by reminding the jury that there had been no evidence on that topic.

[15]       By convicting the appellant the jury clearly disbelieved his evidence that he had not been present at the property on 27 November 2007 to convert the motor vehicle Mr Hardie had been driving.

Discussion

[16]       The appellant was agitated when making his submissions to us.  The outcome he sought was an acquittal.  He was clearly surprised and disappointed when he learned that the only possible outcome, if the appeal were allowed, would be a retrial. 

[17]       Much of the appellant’s submissions related to matters which had been canvassed at trial before the jury.  One issue raised, however, was an untested statement from a Mr Kerry Lin provided to the appellant in August 2009.  The appellant asserted that Mr Lin was the young man who had picked him up from Tuakau Main Road on the morning in question whilst he was hitchhiking and had driven him to a home in Pukekohe, dropping him off just after 9.00 am. 

[18]       Because alibi evidence had not been called at trial we had some concerns about this issue.  The appellant, representing himself, had not fully investigated Mr Lin’s evidence.  Even though the evidence would have been available at the trial, it had not been placed before this Court in affidavit form. 

[19]       By minute dated 28 September 2009, we directed the appointment of an amicus to investigate the position and provide a full and comprehensive affidavit from Mr Lin within 14 days.  Had such an affidavit been provided then it could have been tested in the normal way and its relevance to any miscarriage of justice assessed.  We directed a focus by Mr Lin on how, nearly two years later, he was able to remember the date he gave the appellant a lift, and the time he dropped him off in Pukekohe.

Investigation by amicus

[20]       The amicus appointed was Ms Rosemary Thomson.  We have received her report of 14 October 2009 which was forwarded to the appellant.

[21]       Ms Thomson has not been able to comply with the direction to provide a full and comprehensive affidavit from Mr Lin.  She has written to him and contacted him by telephone.  She explained to Mr Lin the legal implications of swearing an affidavit.  Mr Lin, for his part, indicated he wished to consider the matter further before committing himself.  On 12 October 2009 Mr Lin advised Ms Thomson he was not prepared to swear an affidavit.

[22]       No further submissions have been received by the appellant.  This Court’s minute dated 30 October 2009, obliged the appellant to file any further submissions by 4 November, in default of which this Court would issue its judgment.

Decision

[23]       Regardless of the appellant’s oft-repeated and angry assertions that he has been the victim of a miscarriage of justice, there is no proper basis on which this Court can reach such a conclusion. 

[24]       Alibi evidence, were it available, should have been called at the appellant’s April 2009 trial.

[25]       As is clear from the report provided by the amicus, no alibi evidence or other evidence confirmatory of the appellant’s evidence at trial that he was hitchhiking at the relevant time is available.  Mr Lin, despite having had the situation explained to him, is not prepared to give sworn evidence. 

[26]       The appellant’s evidence at trial, which struck at the heart of the Crown’s case and the evidence of Mr Hardie, was disbelieved by the jury.  The jury, properly directed, was satisfied that guilt had been proved beyond reasonable doubt. 

[27]       The appeal thus has no merit and must be dismissed.

Result

[28]       The application for an extension of time is granted.  The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington