Wells v Police
[2015] NZHC 1825
•4 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-008 [2015] NZHC 1825
BETWEEN MEGAN LEE WELLS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 3 August 2015 Counsel:
No appearance by or on behalf of Appellant
S O'Connor for RespondentJudgment:
4 August 2015
JUDGMENT OF BREWER J
This judgment was delivered by me on 4 August 2015 at 3:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors: Meredith Connell (Auckland) for Respondent
Copy to: Appellant in person
WELLS v POLICE [2015] NZHC 1825 [4 August 2015]
Introduction
[1] Ms Wells appeals her conviction on one charge of assault handed down against her by Judge CJ Field in the District Court at Auckland on 12 December
2014. This followed a Judge alone trial during which Ms Wells was self-represented. The main ground for her appeal is that she did not receive a fair trial due to her lack of counsel.
[2] Ms Wells represents herself on her appeal. The history of the appeal to this point is as follows:
·27 February 2015: first call of the appeal, before Thomas J. Ms Wells asked for an adjournment so she could “investigate the position of legal representation at the appeal”. The application was granted.
·27 March 2015: second call of the appeal, before Woolford J. Ms Wells advised that legal aid had been refused and that she was investigating selling her house in order to meet the cost of a lawyer in respect of the appeal. She asked for a further adjournment. The application was granted.
·29 May 2015: third call of the appeal, before Woolford J. Ms Wells advised that her application for legal aid had been declined because she has assets in excess of the limit. Woolford J set the appeal down for hearing on 3 August
2015 and made a timetable order.
[3] Ms Wells duly filed her points on appeal on 30 June 2015 and her submissions on 13 July 2015. However, when the case was called in the Court (it was the second appeal on the list), there was no appearance by or on behalf of Ms Wells. I stood the matter down to 11:30 am in case Ms Wells was simply delayed in coming to Court. However, that time passed and Ms Wells did not appear.
[4] In these circumstances, rather than strike the case out for want of prosecution, I will decide it on the papers.
Background
[5] The case tried by Judge Field was a simple one. A neighbour of Ms Wells, a Mr Ford, gave evidence that he was backing his car out of his driveway when he heard Ms Wells talking across the fence. He could not quite understand what she was saying. There had been a degree of conflict between the two neighbours for some years. Mr Ford’s evidence was that he then saw Ms Wells at her letterbox at the bottom of the driveway and slowed down, at least to walking pace. He said that Ms Wells stepped out behind the car and banged on the window with her hand. Ms Wells accused him of trying to run her over. Mr Ford’s evidence was that after some discussion Ms Wells turned away and then turned back and punched him in the face.
[6] According to Mr Ford, there was some further discussion about whether he had tried to run Ms Wells over and Ms Wells said he was a liar. Mr Ford said that Ms Wells punched him twice more, with the third punch splitting his lip. Mr Ford grabbed Ms Wells’s wrist and pushed her away.
[7] Mr Ford complained to the Police and photographs taken by the Police appeared, to Judge Field, to corroborate that Mr Ford had suffered some trauma to his face and mouth area.
[8] Ms Wells cross-examined Mr Ford about alternative explanations for the trauma to his face and mouth. Mr Ford denied her suggestions. Ms Wells put a doctor’s report to Mr Ford, but that appears to have repeated Mr Ford’s version of events, including that his injuries were sustained by Ms Wells’s assault.
[9] Ms Wells elected not to give evidence or to call any evidence.
[10] Having heard the evidence, Judge Field found that the injuries sustained by Mr Ford and photographed by the Police were corroborative of the complaint. He accepted Mr Ford as an honest, reliable witness and was ultimately satisfied beyond reasonable doubt that Ms Wells had assaulted him.
Legal principles on appeal against conviction
[11] Section 232 of the Criminal Procedure Act 2011 provides that an appeal against conviction must be allowed if the Court is satisfied that, in the case of a Judge alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any other reason.
[12] A miscarriage of justice is defined in s 232(4) as:
(4) in subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
Discussion
[13] As I have said, Ms Wells’s principal ground of appeal is that there has been a miscarriage of justice because she was not represented by a lawyer. There is no absolute right for a defendant in a criminal case to be legally represented. There is a right to have a reasonable opportunity to be legally represented and, no matter what has happened in terms of legal representation, a conviction will be overturned if
there has not been a fair trial.1
[14] I start by observing that the trial before Judge Field began on 8 September
2014 but was adjourned part-heard after Ms Wells requested further disclosure from the Police. The hearing resumed on 12 December 2014, was completed on that date, and the Judge gave his oral judgment at the close of the evidential phase.
[15] A minute made by Judge Field on 8 September 2014 states that Ms Wells wished the Judge to record that she had engaged a lawyer the previous week when her legal aid was refused and that the lawyer’s name was Catherine Wilson. The
minute states that the lawyer “cannot be here today”.
1 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300.
[16] The transcript of the 8 September 2014 hearing records a comment the Judge made that if Ms Wells could persuade a lawyer to act for her, even at that late stage, it might be helpful. Ms Wells replied:
Well it’s just, it’s refundable, because I seem to be paying out on this guy’s claims all the time you know, it’s sort of like, pay up, pay up, they either drop the charge or you know like not guilty, pay up, pay up, it’s just like amazing and then the latest one and then there was another one that’s sort of you know, it’s just unbelievable.
[17] The Judge said that it appeared that it was going to continue to be a problem to get representation that was paid.
[18] When the trial resumed on 12 December 2014, the first thing that was discussed was Ms Wells’s legal representation. The prosecutor informed the Judge that Ms Wells had spoken to the duty solicitor, who was called to address the Court. The duty solicitor told the Judge that Ms Wells sought an adjournment in order to get an audio recording of the trial on 8 September 2014, as she believed that the transcript provided was inaccurate. The duty solicitor said (I hope more coherently than is recorded):
She also instructs me that were an amendment, well she also has made these attempts to instruct counsel I have seen a business card for a Ms Catherine Wilson who is a counsel in Waitakere, … But speaking of Ms Wells I don’t believe anyone would be instructed to point either with care and conduct letters of arrangements as to fees so there would be no binding any counsel to appear on the basis of what Ms Wells tells me she’s done to date to find counsel. She does tell me though that if an adjournment were granted she would instruct counsel, and I have made it clear to her that they would have to be paid one way or another because no counsel will do this for free.
[19] Judge Field decided not to adjourn the trial. His Honour said that it was in everybody’s interests and the interests of justice overall for the matter to be resolved that day. He considered, based on what the duty solicitor had said, that it was most unlikely that “any lawyer would be able to accept instructions on the basis that [Ms Wells] appear[ed] to want them to act”.
[20] At the end of the prosecution case, the matter of Ms Wells’s legal representation came up again. The Judge asked whether Ms Wells wanted to give evidence on oath or call a witness. The following exchange then occurred:
Ms Wells:
Well I believe I need legal representation.
The Court:
All right, okay but you don’t have it and …
Ms Wells:
Well perhaps an adjournment on that until the representation can gain the right evidence.
The Court:
I think it is a forlorn hope Ms Wells I’m sorry to say this –
Ms Wells:
Ah, well it’s not a forlorn hope Sir it’s just a request.
The Court:
Why hasn’t it happened until now?
Ms Wells:
Um, I think a lawyer needs to be paid Sir I’ve made all the necessary things and I’ve consulted them the last lawyer I asked wanted $2000 in a trust account and she’s up next week. I asked her if she could be here today because you’d requested that I have a lawyer and I tried to comply with that she said she was recovering from surgery, she’ll could be up there next week and to, um, ask for adjournment and meanwhile put $2000 into a trust account which is a very reasonable amount for a defendant hearing she said. So I did attempt to get Ms Wilson to either send in her under person or come in herself and she said she was going to come in right up till the last minute and she’s not here.
[21] The Judge replied that he did not think that Ms Wells would be able to persuade a lawyer to appear for her without payment.
[22] Against this overall background, I have no doubt that Ms Wells was afforded a reasonable opportunity to obtain legal representation. The issue is whether, because she did not have legal representation, did she get a fair trial?
[23] I am satisfied from the transcript that the Judge recognised that Ms Wells would need assistance by way of clarification of the procedure and assistance with presenting her case. The Judge went out of his way to assist Ms Wells in clarifying the points she wished to make in cross-examination and suggesting material she might put to the witnesses. He also allowed Ms Wells to cross-examine Mr Ford twice. At the end of the prosecution case, the Judge asked Ms Wells whether she wished to give evidence. Ms Wells replied that she did not wish to at that stage. The Judge replied that this was the stage at which she would have to give evidence and
that if she did not, then the only material before the Court would be the evidence called by the prosecution, challenged in the way that Ms Wells had challenged it through cross-examination. The Judge then asked her again if she wished to give evidence or call witnesses. It was then that Ms Wells stated that she needed legal representation.
[24] I repeat the point that this was the continuation of a trial that had started three months previously.
[25] This was a simple case with no complicated legal issues. The issues were factual. It appears from the transcript that Ms Wells fully understood that the case turned on whether the Judge would accept Mr Ford’s account of what happened. The photographs taken of Mr Ford by the Police show clearly that he had suffered injuries consistent with his account of being punched. Ms Wells’s defence, as put through cross-examination, was that she did not inflict the injuries shown in the photographs.
[26] During the first day of hearing the Judge asked Ms Wells whether she agreed with Mr Ford’s version of events. He asked her whether she wished to put to Mr Ford that she did not strike him at all. Ms Wells responded that that was correct and the Judge asked Mr Ford whether this was so. Mr Ford emphatically rejected the suggestion. The Judge then said it would be helpful for Ms Wells to put to Mr Ford her version of events. Ms Wells said that there had been a number of false allegations by Mr Ford against her. The Judge then asked Mr Ford whether this was the case. Mr Ford’s reply was to the effect that complaints that he had made against Ms Wells in the past were valid complaints.
[27] The Judge then asked Ms Wells to put her version of events to Mr Ford. She did so. She stated that she was getting ready for a motorbike trip and that there was a lot of yelling on the other side of the fence. She said she was standing at the end of her driveway and thought she would have time to cross Mr Ford’s driveway before he reversed to the end of it, but that Mr Ford reversed into her. At that stage she banged on the window (there were photographs in evidence of handprints on the window of Mr Ford’s car), and went up to his window where he was laughing. The
Judge asked Mr Ford whether he wished to make any comment on Ms Wells’s account. He replied that it was a modification of the truth. Ms Wells stated that Mr Ford had a beer bottle between his legs and she accused him of drink-driving, at which point Mr Ford had grabbed her finger and twisted her arm behind her back. The Judge told Ms Wells that she could give evidence about the incident herself but asked if there was anything else she wanted to say, because in his view what Ms Wells was putting to Mr Ford was that she did not strike him.
[28] Mr Ford was then cross-examined again. Ms Wells put it to him that he drove his car into her or at her to make her run out of the way. Mr Ford said that this was not true. Later, to clarify Ms Wells’s line of questioning, the Judge asked Mr Ford whether he had concocted the story with his wife to get Ms Wells into trouble. Mr Ford said that was a complete fabrication. Ms Wells asked whether he had had a stop after backing out of his driveway where he may have cut or bitten his lip. The reply was “absolutely not”. Ms Wells began asking Mr Ford about whether he had had a fight with his wife. The Judge intervened and asked Mr Ford whether his wife punched him in the mouth. Mr Ford said that definitely did not happen.
[29] There are further examples of the Judge assisting Ms Wells to make her points. The overall impression is that Ms Wells had every opportunity to make what was essentially a simple factual conflict plain. I see no miscarriage of justice, no matters going to fairness of trial, which should result in the conviction being overturned because of lack of legal representation.
[30] The other matters Ms Wells has raised are procedural and have no bearing on fairness of trial or miscarriage of justice. They are:
(a) Inaccuracy of the Court audio transcript;
(b) Police withholding exhibits (disclosure issues);
(c) Police conferring with witnesses inappropriately; and
(d) The trial Judge’s requests were not complied with by the prosecution.
(a)
[31]
Inaccuracy of the Court audio transcript
There is nothing in this point going to the outcome of the case.
(b)
[32]
Police withholding exhibits
The issue of disclosure was addressed on 8 September 2014.
The
adjournment was given to allow Ms Wells and the Police to address any outstanding disclosure issues. At the 12 December hearing, the Police confirmed that disclosure had been completed as far as they were able to take the issue. I am satisfied that there is no indication of a default which could go to the fairness of the trial.
(c) Police conferring with witnesses inappropriately
[33] Ms Wells complains that the prosecution conferred with witnesses during cross-examination. She does not give any details. Taking the allegation on its face, r 13.10.7 of the Rules of Conduct and Client Care provides that a lawyer must not communicate with a witness during cross-examination, including adjournment of the hearing, except where good reason exists or with the leave of the Judge or the lawyers of the other party. This represents the common law and is designed to prevent the coaching or coaxing of a witness or the appearance of such.
[34] Breach of the rule does not of itself invalidate a trial. There has to be some connection between the breach and a finding of unfairness giving rise to a miscarriage of justice. There simply is nothing of that sort here. Further, given the simple nature of the case, it is difficult to see how there could be.
(d) Failure to comply with the Judge’s requests
[35] Ms Wells does not identify which requests by the trial Judge were not complied with. It might be that she refers to the trial proceeding without legal representation. In any event, there is an onus on the appellant to show cause as to why a ground of appeal can give rise to a finding that a trial was unfair and that there was a miscarriage of justice.
Decision
[36] This was a simple case of one neighbour saying that in the course of an argument his neighbour punched him three times. Ms Wells made it clear during the hearing that she denied punching Mr Ford. The Judge, having heard Mr Ford and seen the Police photographs, and being fully aware of Ms Wells’s case through cross- examination, found that he could be sure that the assault had occurred. That was entirely open to him on the evidence.
[37] There was no miscarriage of justice occasioned by lack of legal representation. Ms Wells had every opportunity to find a lawyer. This was not a complex case and Ms Wells understood what was at issue.
[38] It is clear to me that the Judge did everything properly available to him to assist Ms Wells through the course of the trial to ensure that her case was put in cross-examination. He made it very clear to Ms Wells that it was her choice as to whether she gave or called evidence and that if she chose not to then he would decide the case based on the evidence that had been put before him by the prosecution.
[39] The appeal is dismissed.
Brewer J
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