The Queen v Van Yzendoorn
[2002] NZCA 224
•1 October 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA143/02 |
THE QUEEN
V
DAVID VAN YZENDOORN
| Hearing: | 24 September 2002 |
| Coram: | Blanchard J Morris J Williams J |
| Appearances: | M D Talbot for Appellant F E Guy for Crown |
| Judgment: | 1 October 2002 |
| JUDGMENT OF THE COURT DELIVERED BY MORRIS J |
This is an appeal against conviction and sentence.
On 11 and 12 April this year the appellant was tried at the District Court in Hamilton before a Judge and jury on two charges of common assault. These charges followed an altercation between the appellant and a truck driver when the latter was delivering trolleys of eggs to a foodstore in Hamilton. Essentially, the Crown contention was that the appellant, incensed by the noise of the unloading, took to the truck driver, jostled him and in the ensuing scuffle bit him. The appellant denied these allegations and claimed that if any assault had taken place he was acting in self defence.
The jury acquitted the appellant on one charge but convicted him on the charge of assault involving biting. Immediately following the verdict and after hearing submissions from the appellant’s then counsel, the Judge imposed a fine of $500.
The sole ground being pursued by the appellant in respect of both his conviction and sentence appeals is that part of his trial and his sentencing took place in his absence thus breaching his right to be present at these times.
The appellant relies on s 376 of the Crimes Act 1961 (“the Crimes Act”) and ss 25(a), 25(e) and 27 of the New Zealand of Rights Act 1990 (“the Bill of Rights”). In support of his appeal the appellant swore and filed an affidavit. Affidavits have also been filed by his trial counsel and his doctor.
Factual Background
The trial commenced on Thursday 11 April. The truck driver and three other witnesses were called by the Crown. A statement made by the appellant to a police officer who investigated the matter was also produced. The appellant gave evidence as did his wife. He also called a character witness. The evidence concluded about 5.00 pm on that day.
The appellant was granted overnight bail to appear the following morning. Due to deplorable inadvertence and through no fault of the appellant he was not released on bail but was detained in the holding cell adjacent to the courtroom from approximately 5.00 pm on the Thursday until 8.00 am on the morning of Friday 12th. The authorities appear to have forgotten about him.
The court staff who found him still in the holding cell on the Friday immediately released him. It is not disputed that, when found, he was naturally extremely upset and tired. He had gone without food and water during his incarceration and had no toilet facilities. Court staff arranged a taxi to take him home. They gave him a return taxi slip so as to ensure he would return to court for the continuation of his trial at 10.00 a.m.
The appellant went home. He telephoned his counsel. He instructed his counsel to seek an adjournment of his trial as he had been up all night and was traumatised by his ordeal.
His counsel saw the Judge in Chambers. He explained to the Judge what had happened. He advised the Judge of his client’s condition and sought an adjournment of the trial.
The Judge declined the request for an adjournment. He gave the appellant three options, namely:
[a]Have the trial aborted;
[b]Have the trial continue in the presence of the appellant;
[c]Allow the trial to continue with the appellant being excused.
Trial counsel contacted the appellant by phone. The appellant instructed him to consent to the trial continuing in his absence, which was explained to the jury in a way which, it is accepted, would have caused no prejudice.
The appellant went to his doctor. The doctor gave him a certificate as follows:
The above patient is unable to attend court today because of the stress of being held in custody, in error, overnight. He normally suffers from nervous anxiety and this was acutely exacerbated by his overnight ordeal.
This certificate was at no time passed on to counsel, nor the court, nor the Judge. In his affidavit the appellant says:
However I understood that the Trial was to proceed, and that I had already been excused, so did not forward the letter on.
The appellant had in fact been attending his doctor since October 2000 complaining of stress and depression. He had been seen on numerous occasions. The doctor considers he is a nervous, anxious and stressed sort of person and confirms he had been tried on numerous anti-depressants since October 2000. The doctor’s opinion concerning the events in April is that the appellant’s anxiety was acutely exacerbated by his overnight ordeal and he was unfit to attend the Court on the 12th.
Section 376 of the Crimes Act gives an accused the right to be present at his trial unless he or she misbehaves to the extent that the trial is obstructed. It also gives the Judge a general discretion to allow the accused to be excused for any part of his trial.
The sections of the Bill of Rights relied on by the appellant provide:
25 Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a) The right to a fair and public hearing by an independent and impartial court:
…
(e) The right to be present at the trial and to present a defence:
…
27Right to justice
(1)Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
Sentencing is part of a trial: Foley v R (CA 172/93, 10 June 1993). A trial is permitted to continue in the absence of an accused where an accused has been guilty of dis-entitling conduct such as absconding: R v Hika (1986) 2 CRNZ 245; Connelly v R (1998) 15 CRNZ 662. The right to be present however is not an obligation on the Court, or the accused, to ensure that he is present in all circumstances. In particular, an accused can waive his rights to be present. In R v Howson (1981) 74 CrAppR 172, 179 the Court of Appeal held that the Judge’s discretion is broad and is not limited to cases where the accused has abused the right to be present or voluntarily agreed to the trial going ahead in their absence:
In our view, the discretion is not so limited and, in an appropriate case, the judge has a discretion to continue a trial in the absence of one of the accused through illness. This is a discretion which we would expect to be sparingly exercised and never if the accused’s defence could be prejudiced by his absence.”
To the same effect is the decision of the House of Lords in R v Jones [2002] UKHL 5. When a question arises whether a trial should proceed in the absence of an accused the trial Judge must determine whether it is in the interests of the due administration of justice to proceed or not. If there is a real risk a fair trial will not result from the absence of an accused then clearly the trial should not proceed.
We are satisfied, having regard to the particular state of this trial and the nature of it, that the Judge was correct in continuing the trial in the absence of the accused. We are satisfied no miscarriage of justice has occurred. We note particularly:
[i] The factual matrix was uncomplicated;
[ii] The evidence from both the Crown and the Defence had been completed on the Thursday;
[iii] The appellant having been given the options to which we have earlier referred, agreed to his trial continuing in his absence.
[iv] The Judge dealt with appellant’s absence in an unchallengeable manner. He told the jury the appellant was attending his doctor.
Counsel’s closing address would not have required any input from the appellant. If an adjournment had been granted the reality is the trial would have had to be adjourned to the following week. It appears the trial Judge was then unavailable to sit in Hamilton.
We note that in his affidavit the appellant states:
I do not believe I was in a fit state given the ordeal I had just suffered to make an informed decision. At that time I felt I could not face going into Court again so consenting to the Trial continuing in my absence was my only option. I instructed Counsel accordingly.
There is nothing in the medical evidence nor the certificate which supports the claim the appellant was not in a fit state to make an informed decision. Likewise there is no suggestion of this in counsel’s affidavit. There is no criticism of the summing up. It is accepted the verdict was one which the jury could properly reach on evidence.
We are of the view that there has been no breach of the appellant’s rights under s 376 or the sections of the Bill of Rights to which reference has been made arising out of the continuance of the trial and the taking of the verdicts in his absence. The trial was fair. He elected not to be present at its later stages when the evidence was already complete. His defence was fully presented.
The appellant’s appeal against conviction is accordingly dismissed.
Appeal against sentence
It must, however, be accepted that the course adopted resulted in the appellant having no real input into the sentencing process.
Trial counsel (not Mr Talbot) had been instructed by the appellant at an early stage in the proceedings that, if found guilty, the appellant wanted to avoid a conviction. He has confirmed that the Judge, after the conviction was recorded, “indicated” he was prepared to sentence the appellant in his absence. It is also clear that, having had this indication, counsel stated that a discharge without conviction was sought and thereupon received a further indication from the Judge that he did not think it was appropriate and that a fine was in order. Counsel has deposed given this indication:
Given that Mr van Yzendoorn had received a discharge without conviction earlier in the year, I saw the learned Judge’s indication of a fine as realistic and did not argue against it.
Significantly, counsel did not seek an adjournment to obtain further instructions. Clearly, both this experienced Judge and trial counsel considered the sooner the whole episode was put behind the appellant the better. Nevertheless the simple fact remains the appellant was not given an opportunity for input into counsel’s submissions. Significantly, without instructions, counsel chose not to argue against the imposition of a fine rather than a discharge.
In imposing the fine the Judge did so on the basis the appellant had been stressed as a result of the continuing noise at the distribution centre. He accepted the appellant’s emotions got the better of him. He took into account the appellant had come off second best in the physical altercation with the driver and he was aware the appellant was a chartered accountant. He treated him as a first offender. But he had also to take into account this was not a trivial assault. It involved a deliberate biting. Furthermore, the appellant had already received a discharge without conviction earlier in the year on an unrelated matter.
We are concerned that the course taken by the Judge may have deprived the appellant of the opportunity of giving counsel full instructions on matters to be advanced in mitigation. The appellant’s complaint is basically:
[a]He had no opportunity to instruct counsel in detail and counsel was unaware of the extent and nature of his medical problems;
[b]Counsel was unaware of all the matters which might be put before the Court in support of a discharge including the possible effect a conviction would have on appellant’s career as a chartered accountant seeking employment.
[c]Counsel had not been instructed “to accept” a fine.
Counsel asked us in the event of the appeal against conviction being dismissed to impose such sentence as we felt appropriate. However, his client was not present in this Court and he had not received full details of matters to be advanced for the appellant. We are therefore not prepared to accede to his request. The majority consider the proper course is therefore to allow the appeal against sentence, quash the sentence imposed and remit the matter to the District Court for re-sentence.
Our decision should not be taken to reflect any view that the sentence was inappropriate on the facts put before the Judge. The matter should now be considered afresh also taking account of any new material.
Solicitors:
McCaw Lewis Chapman, Hamilton for Appellant
Crown Law Office for Respondent
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