The Queen v Van Yzendoorn - [2002] NZCA 224

IN THE COURT OF APPEAL OF NEW ZEALAND

CA143/02

THE QUEEN

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 12^th. 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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NZCA 224
Decision Date: 1 October 2002

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by David Van Yzendoorn against his conviction and sentence. The appellant was convicted by a jury in the District Court in Hamilton on one charge of assault involving biting, following an altercation with a truck driver. The appellant appealed on the ground that part of his trial and sentencing occurred in his absence, thereby breaching his right to be present under the Crimes Act 1961 and the New Zealand Bill of Rights Act 1990.

The legal issues before the Court were whether the appellant's absence during his trial and sentencing breached his rights under the Crimes Act and the Bill of Rights. The Court examined whether the trial judge had the discretion to continue the trial in the appellant's absence, and whether this decision was in the interests of the due administration of justice.

The Court of Appeal held that the trial judge had the discretion to continue the trial in the appellant's absence, and that there was no real risk of a miscarriage of justice in this case. The Court noted that the appellant had been given options by the trial judge, and had elected to have the trial proceed in his absence. The Court further held that the appellant's absence during sentencing deprived him of the opportunity to provide full instructions to his counsel, and that this may have affected the sentence imposed. The Court allowed the appeal against sentence, quashed the sentence imposed, and remitted the matter to the District Court for re-sentencing.

Orders