Wiri v Police
[2018] NZCA 614
•19 December 2018 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA391/2018 [2018] NZCA 614 |
| BETWEEN | ROBERT KINGI JAMES WIRI |
| AND | NEW ZEALAND POLICE |
| Court: | Brown, Courtney and Katz JJ |
Counsel: | Applicant in person |
Judgment: | 19 December 2018 at 11.30 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
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REASONS OF THE COURT
(Given by Brown J)
Introduction
On 28 February 2018 the applicant, Mr Wiri, was convicted in the District Court at Rotorua on one charge of resisting a constable acting in the execution of his duty.[1] His appeal to the High Court was dismissed.[2]
[1]Police v Wiri [2018] NZDC 5696.
[2]Wiri v Police [2018] NZHC 1222.
Mr Wiri seeks leave under s 237 of the Criminal Procedure Act 2011 for a second appeal to this Court. Section 237(2) provides that this Court must not give leave for a second appeal unless satisfied that:
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
The application for leave to appeal was not filed until 10 July 2018 and hence an application for extension of time was required. The Crown did not object to an extension of time which was granted by Gilbert J on 27 September 2018.
Background
The charge arose from an incident on 30 June 2017 at the home of Mr Wiri’s sister and her partner where Mr Wiri was living. Their evidence was that Mr Wiri was making a commotion in the middle of the night. He was drunk and belligerent and the police were called. There was a dispute as to what occurred when the police endeavoured to arrest Mr Wiri. The two police officers gave evidence that Mr Wiri was told to put his hands behind his back but instead he put his hands up in the air and moved away from the officers. A struggle ensued and eventually Mr Wiri was placed face down on the bed in his bedroom and handcuffed with his hands behind him.
Mr Wiri gave a different version of events. He indicated that he was prepared to be handcuffed with his hands in front of him, that he was punched, and put in a headlock, and the police tried to force his hands behind his back. The police officers did not agree, maintaining that Mr Wiri was trying to keep his hands away so as to avoid being handcuffed.
Mr Wiri did not impress Judge Ingram as a witness, the Judge stating that he “unhesitatingly” accepted the evidence of the police officers for reasons which he gave in his decision.[3]
[3]Police v Wiri, above n 1, at [6]–[8].
On appeal argument was advanced for Mr Wiri that he was justified in using such force as he did because he was acting in defence of himself and, in the circumstances as he believed them to be, such use of force was reasonable. After reviewing the evidence Brewer J concluded that the appeal should be dismissed stating:
[10] In my view, it was open for Judge Ingram to disbelieve Mr Wiri and accept the evidence of the police officers. The evidence picture, therefore, was that Mr Wiri was physically trying to avoid being handcuffed and the Police used reasonable force, in the course of effecting an arrest, to apply handcuffs to Mr Wiri. On the evidence as accepted by Judge Ingram, there was no credible narrative going to self-defence.
The application for leave
In support of his application for leave Mr Wiri filed a substantial affidavit with a number of exhibits. Although in form an affidavit, it was in the nature of submissions and we received it as such.
The first 20 paragraphs of the affidavit revisited the events of the evening of 30 June 2017. The next section referred to fresh evidence which Mr Wiri wished to adduce on appeal. The proposed evidence comprised medical notes from his general practitioner, medical notes relating to prior surgical treatment in 2012 and 2014 and a letter confirming his completion of alcohol counselling.
Mr Wiri explained that, because the lawyer who had previously acted for him in the High Court had retired, Mr Wiri has no legal representation in relation to the present application. Attached to his affidavit was a synopsis of submissions for the proposed appeal which Mr Wiri explained had been prepared by his former lawyer prior to his retirement on 30 June 2018. The Crown did not oppose Mr Wiri’s request that the Court consider the contents of that synopsis of submissions.
The balance of the affidavit under the heading “Legal Representation Background and Remedy” discussed aspects of the history of Mr Wiri’s legal representation. It also made brief reference to the hearing in the District Court including citing an example of what was described as the Judge’s “negative attitude” towards him.
In the affidavit Mr Wiri complained that there was a serious conflict of interest at the High Court appeal by reason of the fact that the Crown prosecutor was a relative and friend of his. He also contended that the High Court Judge did not take his appeal seriously.
Discussion
The synopsis of submissions of Mr Wiri’s former lawyer again traversed the facts before focusing on the issues of what amounts to “resisting” arrest and the asserted defence of self-defence. It was in the latter context that reference was made to the proposed new evidence, posing the question whether Mr Wiri’s subjective belief was reasonable that having his hands forced behind him would cause him pain:
28.The appellant submits that it is. There is now fresh medical evidence as well as the evidence of the appellant, as well as the evidence of Mr Bartlett. He confirmed the appellant had had a back operation and was taking strong pain medication. The appellant’s affidavit contains fresh medical evidence of this back operation and his pain medication. This evidence also validates his subjective belief that forcing his arms behind his back would cause pain to his back injury.
29.In the circumstances the appellant submits it is reasonable for him to form the subjective belief that forcing his arms behind his back would cause pain. The fresh medical evidence contained in the appellant’s affidavit confirms that he was taking strong medication for a thoracotomy both before and after 30 June 2017.
The Crown submitted that the proposed new evidence is not fresh. Mr Wiri gave evidence at the trial. He explained that he was on medication from a collapsed lung operation, that the officers’ attempt to force his hands behind his back caused him pain and that he tried to stop the officers doing so. He was questioned at some length by the Judge about tendons in his upper back which he deposed were damaged, the medication which he took for pain relief and a number of previous surgical episodes.
In consequence it was Mr Eng’s submission that, even if the proposed evidence was fresh, it would not have been capable of changing the outcome of the trial. The Judge was well aware of the defence case as far as the implications of pain were concerned but crucially he rejected Mr Wiri’s account and unhesitatingly accepted the police officers’ account where they diverged. There was nothing in the new evidence which rendered Mr Wiri’s account any more credible or that of the police officers any less credible.
We agree with the Crown’s submission that, given the evidence of Mr Wiri at the trial, the proposed new evidence is not fresh. Nor do we consider that it would support a different conclusion on the charge of resisting arrest. The allegation concerning an alleged conflict of interest was not developed. There is no indication that it was raised with Brewer J.
Having reviewed the transcript of evidence, the judgments of the lower Courts, Mr Wiri’s affidavit and the exhibits (including the draft legal submissions), we are satisfied that the decisions of the lower Courts were correct and consequently there is no risk that a miscarriage of justice will occur if there is not a further appeal in this matter. Furthermore there is nothing about the proposed appeal which involves a matter of general or public importance. In those circumstances the application for leave must be declined.
Result
The application for leave to bring a second appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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