The Queen v Osborne

[2009] NZCA 168

IN THE COURT OF APPEAL OF NEW ZEALAND

CA179/2008
[2009] NZCA 168

THE QUEEN

v

RATIMA JOSEPH OSBORNE

Hearing:30 April 2009

Court:Robertson, Chisholm and Gendall JJ

Counsel:Appellant in Person

M Dyhrberg as Amicus curiae
J M Jelas for Crown

Judgment:5 May 2009 at 12.30 pm

JUDGMENT OF THE COURT

TIME FOR APPEALING CONVICTION EXTENDED TO 1 JULY 2009.

REASONS OF THE COURT

(Given by Gendall J)

[1]       On 11 April 2008, Mr Osborne filed an appeal against his conviction for murder after he pleaded guilty in the High Court at Rotorua on 27 May 2002 and was sentenced to life imprisonment by Potter J.

[2]       In terms of s 388 of the Crimes Act 1961, Mr Osborne had 28 days to file his appeal.  The Court has jurisdiction to extend time.  Because of the length of the delay it was determined that this issue should be dealt with first.

[3]       Mr Osborne had instructed counsel at the time that the appeal was filed, but the Legal Services Agency declined funding.  The Court was faced with an illiterate young man serving a life term of imprisonment without representation.  The Court appointed Marie Dyhrberg as Amicus to assist.

Brief background

[4]       The appellant was charged that on 10 July 2001 at Wharamaru, near Taupo, he murdered Jason Johnson, a hitchhiker.  The Crown case was that Mr Osborne had picked up Mr Johnson that evening and had violently attacked him, possibly run him over with his motor vehicle, and manhandled him into a river or lake leaving him to die as he did. 

[5]       Mr Osborne made a number of contradictory statements (each in itself largely exculpatory) to the Police prior to the end of July.  Early in August 2001, he provided a further explanation to his then barrister, Mr Fairbrother.  It is arguable that this explanation is the same as that contained in notes which were written out, on his instructions by a cellmate a little later and are replicated in a statement of 31 October 2001, prepared with the assistance of a lawyer who was engaged by Mr Fairbrother, for this purpose.

[6]       Out of all this, the possibility of a defence of provocation seemed to arise.  Well prior to trial, Mr Fairbrother initiated contact with a psychiatrist.  That does not appear to have been followed up.

[7]       The week prior to the hearing, the Crown was assuming that provocation was one of the trial issues.  The evidence currently available suggests that on the morning of trial discussions took place between Mr Osborne and his counsel about pleading guilty to ensure only the statutory minimum non-parole period of ten years would be imposed.  The appellant accepted the counsel’s advice and pleaded guilty by 11.00am on what would have been the first day of a two week trial.

[8]       Notwithstanding the very substantial time that has elapsed, in the end the criteria for determining applications to appeal out of time are the interests of justice; R v Knight (1997) 15 CRNZ 332; R v Lee [2006] 3 NZLR 42; (2006) 22 CRNZ 568 (CA). Relevant considerations may include the strength of the proposed appeal and the utility of any remedy sought, length and reasons for delay, any impact on others and on the administration of justice and prejudice to the Crown.

[9]       The evidence indicates that, from an early stage, Mr Osborne wanted to challenge the conviction.  He catalogues a list of various counsel in different parts of the country whom he endeavoured to interest in his case, but without any success.

[10]     The issue which Ms Dyhrberg has now identified as a possible ground of appeal we acknowledge is different than those which Mr Osborne has spoken of in the past.  But the ultimate test is the interests of justice and this is a case involving a 17 year old where an identified trial issue was abandoned on counsel’s advice in a very short timeframe on the morning a murder trial commenced.

[11]     The matter should be properly ventilated with Mr Osborne represented and the full circumstances assessed.

[12]     The application to an extension of time for appealing is granted and time is extended to 1 July 2009.  This will provide time for Mr Osborne to obtain his own representation for the appeal.  By that date comprehensive grounds of appeal must be filed.

Solicitors:
Crown Law Office, Wellington