Y v Police HC Auckland CRI 2005-404-222

[2005] NZHC 468

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-222

R    Y

Appellant

v

THE POLICE

Respondent

Hearing:         4 November 2005

Appearances: J Price for appellant

A Longdill for respondent

Judgment:      21 December 2005

JUDGMENT OF ALLAN J

WITH CORRECTIONS AS AT 16 MARCH 2006

Solicitors:

J Price, PO Box 331374, Takapuna

Crown Solicitor, Auckland

Y  V POLICE HC AK CRI 2005-404-222  21 December 2005

JUDGMENT OF ALLAN J

Solicitors:

J Price, PO Box 331374, Takapuna

Crown Solicitor, Auckland

[1]      For something more than a year prior to 28 April 2004, the appellant and his then partner shared an apartment at Takapuna.  On the evening of 27 April 2004, the couple spent some time at their apartment with two of the appellant’s friends.  Later that evening after the friends had left the apartment, the appellant’s partner left on her own.

[2]      The appellant apparently formed the view that his partner and his two friends had organised an assignation of some sort.  He became extremely angry and spent several hours systematically damaging or destroying property in the flat owned by his partner and her father.

[3]      In the early hours of the following morning the appellant located his partner who was in her car in a nearby carpark.  He assaulted her by striking her once on her face with a closed fist.  As a result she required medical treatment including the insertion of stitches.  Her face has now largely healed.

[4]      For a time it seemed that the relationship between the appellant and his partner might be repaired, provided she and her father were properly compensated for the damage to their property.  Ultimately however, a complaint was made to the police  and  the  appellant  was  charged  with  wilful  damage,  and  being  a  male, assaulting a female.  The wilful damage charges were subsequently withdrawn and replaced by intentional damage charges in the circumstances described below.

[5]      On 16 February 2005, the charges were heard in the North Shore District

Court.  It was not possible to complete the hearing on that day, and it resumed on

23 March 2005.  The appellant was convicted on each of the three charges he faced, one of assault and two of intentional damage (one in respect of each complainant).

[6]      On 13 June 2005, the learned District Court Judge imposed a sentence of 320 hours  community  work  in  respect  of  the  assault  charge,  and  directed  that  the appellant pay to his partner reparation of $5000 on that charge, expressed to relate to “emotional harm together with the costs relating to the injuries and medical expenses”.    On  each  of  the  two  intentional  damage  charges  the  appellant  was

sentenced to 320 hours community work, concurrent with the community work sentence imposed on the assault charge.  The appellant was ordered to pay further reparation of $15,000 to his partner on the intentional damage charge affecting her. That order was expressed to take into account “… emotional harm as well as direct costs and indirect costs including the costs of the CDs”.

[7]      The appellant was further directed to pay to his partner’s father reparation for the father’s damaged and destroyed goods of $1,449.  The total amount of reparation payable by the appellant was thus $21,449.

[8]      The appellant appeals  against  his conviction,  the  sentence  of community work and the reparation orders.

Appeal against conviction

[9]      The appeal against conviction is advanced on a single ground, namely that the trial Judge wrongly refused the appellant an adjournment to enable him to obtain the services of counsel, when the trial commenced on 16 February 2005.   For the appellant, it is submitted that the Judge’s refusal to allow the application for an adjournment to obtain legal representation amounted to a breach of ss 24(c) and (d) of the New Zealand Bill of Rights Act 1990, with the result that the appellant was not afforded a fair hearing.

[10]     In order to place this submission in its proper context, it is necessary to canvass something of the history of the prosecution.  The offending occurred on 28

April 2004.  On 10 May 2004, the father of the appellant’s partner laid a formal complaint at the Takapuna police station.  The appellant’s partner followed suit on

21 July 2004.

[11]     The appellant was finally located and arrested on 23 November 2004.   He appeared in the North Shore District Court on 29 November 2004, and entered pleas of not guilty to the three charges referred to earlier in this judgment.  He was granted bail and was remanded until 16 February 2005 for a defended hearing.

[12]     On 8 February 2005, that is eight days prior to the trial date, the appellant first  took  legal  advice.    He  saw  a  Mr  Turner,  a  solicitor  of  some  experience, practising as an associate at the Albany Office of McVeagh Fleming, solicitors. Over the next week, Mr Turner did a significant amount of work for the appellant, including obtaining discovery from the police and interviewing and briefing certain witnesses.  Mr Turner asked for a retainer of $500 on account of his costs.  The appellant provided a cheque for that sum, but it was not met upon presentation.  By the afternoon of Tuesday 15 February, the appellant was aware that the cheque had not been met.   That same afternoon, Mr Turner, having consulted a partner in his firm, advised Mr Y   that he would need $2000 on account of his costs before he would do any more work for the appellant or appear in Court on his behalf.  By then concerns had   developed   within   McVeagh   Fleming   as   to   the   appellant’s creditworthiness, Mr Y   having initially appeared to be, and having represented himself as, a person of considerable worth.  No such payment was made.

[13]     At  this  point  there  is  a  factual  disagreement  between  the  appellant  and Mr Turner who, privilege having been waived, swore a detailed affidavit for the respondent.  The appellant’s position is that he was unaware of the requirement for a retainer of $2000, it having been conveyed to him by e-mail and not received by him, at the earliest, until the morning of 16 February, ie the trial date.  The appellant further says that on the morning of the trial he spoke by telephone on three or four occasions to Mr Turner, and had understood that Mr Turner would appear in Court on his behalf.

[14]     Mr Turner’s account is quite different.  He says that not having received the

$2000 retainer, he did not appear in Court on 16 February.  Neither did he hear from the appellant on the 16th until lunchtime, when the appellant appeared unannounced at Mr Turner’s office with a friend.  At that time, according to Mr Turner, the appellant told him he was representing himself at the hearing.

[15]     On  23  February  2005,  Mr  Turner  wrote  to  the  appellant,  recording  the dishonour of the retainer cheque of $500, but confirming that McVeagh Fleming had subsequently received $500 on account of costs.  This latter payment was the result of a last minute effort made by the appellant to have a friend provide a retainer of

$500  in  lieu  of  the  appellant’s  own  dishonoured  cheque,  but  it  seems  that  the payment was not received by McVeagh Fleming until 17 February.

[16]     Mr Turner’s letter confirms that McVeagh Fleming remained willing to act for the appellant, provided that satisfactory arrangements for payment of the firm’s fees could be made.  The appellant says he did not provide any further instructions to Mr Turner because he was unable to pay his costs.

[17]     When the case was called initially on 16 February, the Judge stood it down for a period because Mr Turner had not appeared.  Ms Price, who was acting as duty solicitor that day, appeared for the appellant to ask for an adjournment upon the ground that Mr Turner had not arrived.  In his affidavit filed in this Court, the appellant says that he had contacted another lawyer who had agreed to take his case but was not available on that day.  The District Court Judge refused an adjournment and noted the file as follows:

…asked for adjournment so can get Turner here.  Turner not coming – wants

Neutze who is in a trial.  Opposed by police.  Refused.

[18]     Prior  to  the  commencement  of  the  hearing,  the  prosecution  sought  and obtained the Court’s leave to withdraw the wilful damage charges laid under the Summary Offences Act.  They were out of time and were a nullity.  In their place the prosecution lodged charges of intentional damage under s 269(2)(a) of the Crimes Act.  The new charges are largely co-extensive with the wilful damage charges, but carried a significantly greater maximum penalty.  The appellant did not object to the laying of the fresh charges

[19]     The hearing on 16 February made limited progress.  The appellant’s partner was called and gave evidence in chief.  She was then cross-examined extensively and effectively by the appellant.  Time ran out while that cross-examination was still in progress.

[20]    The hearing resumed on 23 March 2005.  Again the appellant represented himself.  He completed the cross-examination of his partner.  Her father then gave evidence and in turn was cross-examined by the appellant.  One of the appellant’s

friends who had been at the apartment on the night in question was also called and cross-examined by the appellant.   Finally, two police witnesses were called.   One gave brief formal evidence, the other gave more detailed evidence and was also cross-examined by the appellant.

[21]     The appellant elected not to give evidence.  At the conclusion of the hearing the District Court Judge held that that charges had been proved beyond reasonable doubt.  The appellant was accordingly remanded for sentence.

[22]     For completeness, I note that there were difficulties in locating the appellant for the purpose of notifying him of the date of the resumed hearing, and that he failed to appear on the date first fixed for sentencing.  No point was taken on behalf of the respondent in respect of these problems.  In particular it was not argued that the appellant was engaged in a deliberate course of conduct aimed at subverting the Court process.   Although some time was spent by counsel at the hearing of the appeal on an analysis of the circumstances in which those procedural difficulties arose, I discount them for the purpose of determining this appeal.

[23]     Against  that  factual  background,  on  behalf  of  the  appellant  Ms  Price submitted that there had been breaches of ss 24(c) and (d) of the New Zealand Bill of Rights Act 1990, which respectively declare the right of any person charged with an offence to consult and instruct a lawyer, and to have adequate time and facilities to prepare a defence.  Those provisions encapsulate, in effect, the pre-existing common law position.

[24]     Where a person facing criminal charges appears without counsel, but seeks an adjournment in order to instruct counsel, the trial Judge is charged with the responsibility of examining the particular circumstances and making an informed discretionary judgment.  The exercise of that discretion will not be interfered with on appeal unless it proceeds on an erroneous basis, or is wholly wrong, thereby risking injustice.  An accused person is entitled to a fair trial, and his or her interests must be a primary factor in the exercise of the Court’s discretion.  But the public interest in the due administration of justice is likewise an important matter to be taken into account:  see generally the discussion in McKinnon v R CA240/04 4 May 2005.  An

over-arching consideration will be whether the defendant, in all the circumstances obtained a fair trial:  R v Hill [2004] 2 NZLR 145 [62].

[25]     Ms Price submitted that this case had similar features to R v Shaw [1992] 1

NZLR 652,  There the accused was represented by counsel on legal aid on charges of carrying an offensive weapon, threatening to kill and assault.  About five weeks prior to the trial, counsel for the accused identified a clash of fixtures and asked the Crown to consent to a fresh trial date.   Five days prior to the start of the trial the Crown advised it could not consent to a fresh fixture.  Counsel saw the trial Judge on the Friday preceding the trial, due to commence on the following Wednesday.  At that time the Judge indicated he was sympathetic to the accused’s position but made no decision as to the fate of the trial.   At the commencement of the trial the Judge refused an adjournment.  Counsel for the accused sought leave to withdraw, which was granted.  The accused was then unrepresented and the trial proceeded.  The accused was convicted and sentenced to six months imprisonment.

[26]     On appeal, the Court of Appeal held, as was in effect conceded by counsel for the Crown, that the absence of defence counsel was prejudicial to the accused, in that the case concerned was of some complexity, in which an understanding of the defences available in law and the skills of a professional cross-examiner could have been of assistance.

[27]     McKinnon, referred to above, was a case in which the appellant dismissed his counsel on day 1 of his first trial, and then absconded.  At his second trial he raised Maori sovereignty issues, refused to recognise the jurisdiction of the Court and refused to instruct fresh counsel.  In those circumstances the appellant had, in effect, chosen to represent himself.  The Court of Appeal dismissed an appeal against the refusal by the trial Judge to grant an adjournment

[28]     Faced with an adjournment application on the ground that the accused person wishes to instruct counsel, the trial Judge must exercise his/her discretion in the light of all the circumstances of the individual case.

[29]     Without evidence of an attempt by a defendant to manipulate the system, a trial Court will generally need to afford a defendant who is unexpectedly and suddenly unrepresented by counsel, an opportunity for an adjournment to obtain alternative counsel or at least to marshal his forces, and to be ready to represent himself in Court:  R v Ru (2001) 19 CRNZ 447 [21] CA.  There is the potential for injustice if that does not occur.

[30]     As discussed above, it is not possible to be confident about the way in which the matter unfolded in the District Court.   It seems however, that Mr Turner not having appeared, the appellant made inquiries about the availability of alternative counsel, but not surprisingly could not arrange representation for that same day.  An adjournment was sought but refused by the trial Judge.  What happened thereafter is not clear, because there was no evidence on the point, but it seems a reasonable inference that, the adjournment having been refused, the appellant was required to defend himself then and there.

[31]     In this case, at the very least, the appellant ought to have been given a certain amount of time within which to prepare to defend himself, even though that was delayed at the commencement of the trial until later in the day.  Whether or not the appellant got that time is uncertain on the evidence.  In the end, the question for this Court must be whether, in spite of what occurred, the appellant has had a fair trial (Hill paragraphs [62]-[68]; Ru paragraph [29]).

[32]     In this case despite the Court’s misgivings over what occurred, I am satisfied that the appellant did receive a fair trial.  Although he may have been taken by surprise initially when faced with the prospect of defending himself, his cross- examination of his partner was incomplete on the first day and no other witnesses were called that day.   He then had five weeks within which to further prepare his case, and in particular his cross-examination of prosecution witnesses.  He also had that time within which to determine whether he himself should give evidence.  The Court record discloses that he did not in the end give evidence, having concluded that his case was sufficiently put to the Court through his questions of prosecution witnesses.

[33]     Unlike Ru where the defendant’s presentation of his case was described by the Court of Appeal as “pathetic”, Mr Y   represented himself capably.   His cross-examination of the witnesses appears from the transcript to have been reasonably well focused, and to have drawn out the conflict, such as it was, between his account of the matter and those of the prosecution witnesses.  In that regard the case has similarity to that of Hill.  The case was not at all complex, and in truth was overwhelming.  The Judge was well entitled to conclude that the appellant had assaulted his partner, as she alleged, and that he had intentionally damaged a number of items belonging to her and her father.

[34]    Neither do I believe that the appellant was disadvantaged in respect of the substitution of Crimes Act charges alleging intentional damage for the stale wilful damage charges.  Ms Price submitted, somewhat faintly, that had counsel appeared for the appellant, counsel may have been able to convince the trial Judge that it was an abuse of process for such fresh charges to be laid.  I am satisfied there was virtually no prospect of the Judge accepting an argument of that sort.  The original charges were nullities, but they served to put the appellant on notice of the matters alleged against him.  The Crown was entitled as of right to lay the fresh charges, and there could be no question of the appellant being prejudiced since the elements of the new charges were effectively the same as those they replaced, albeit carrying higher maximum penalties.

[35]     Prima facie, the refusal of the adjournment gave rise to potential injustice, but the  resulting  trial  was  not  unfair.    The  appellant,  an  intelligent  man  with  a professional background, was plainly, as can be discerned from his cross- examination, well aware of the issues facing the Court, and he conducted his defence capably in a case which was essentially simple.  There is no real possibility that a miscarriage of justice occurred as a result of the manner in which the trial developed.

[36]     The appeal against conviction is therefore dismissed.

Appeal against sentence

[37]    The appellant appeals against the sentence of 320 hours community work imposed upon him concurrently in respect of each of the three charges upon which he was convicted.

[38]     The sentencing notes of the trial Judge (paragraph [22]) reveal the Judge’s view that this was a case which might qualify for a custodial sentence, particularly in respect of the assault charge.  The appellant had a prior conviction for common assault in 1998.

[39]     In the result, the Judge told the appellant the only factors which had saved him from prison were that:

a) b)	The police had not sought a prison sentence; He was a first offender on that type of charge (so effectively putting to
one side the previous common assault conviction);
c)	If he remained in the community he would have a better chance of paying reparation to the complainants.
[40]	Tha	t was a stance which the sentencing Judge was plainly entitled to adopt.

Although the assault consisted only of a single blow, it was plainly a blow of some force and severity because the victim (the appellant’s partner), required stitches as a result.  Moreover, the scale of the destruction wrought by the appellant in the course of what can only be described as a rampage among the property of his partner and her  father,  plainly  justified  a  stern  approach.    The  community  work  sentence imposed  by  the  sentencing  Judge  was  within  the  range  of  sentencing  options available to him.

[41]     The appeal against sentence is accordingly dismissed.

Appeal against reparation orders

[42]     Mr Y   appeals against the quantum of the reparation orders made in favour of his partner and her father.  Section 12 of the Sentencing Act 2002, provides that the Court is lawfully entitled under Part 2 of the Act, to impose a sentence of reparation.  It must impose it unless it is satisfied the sentence would result in undue hardship, or that any other special circumstances would make it inappropriate.

[43]     Section 32 of that Act provides  that  a  Court  may impose  a  sentence  of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer:

a)       Loss of or damage to property;

b)       Emotional harm;

c)        Loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.

[44]     The appellant’s partner and her father plainly fall within the definition of the term “victim” as it appears in s 4 of the Act.  In the circumstances there can be no doubt  the  Court  had  jurisdiction  to  make  reparation  orders,  both  in  respect  of financial losses directly incurred, and of emotional harm.   Section 33 of the Sentencing Act provides for the preparation of reparation reports.   Section 34 provides:

34       Reparation reports

(1)       A probation officer or other person who is required by a court to prepare a report under section 33 must attempt to gain agreement between the offender and the person who suffered the harm, loss, or damage on the amount that the offender should be required to pay by way of reparation.

(2)      If agreement is reached, the probation officer or other person must report the terms of the agreement to the court (in addition to any other matters on which the court has required a report).

(3)       If no agreement is reached, the probation officer or other person must,—

(a)     in respect of emotional harm, state in the report the respective positions of the offender and the person who suffered the harm, and that the matter is unresolved; and

(b)    in respect of loss of, or damage to, property, either—

(i)determine the value of the loss or damage and the consequential loss or damage on the evidence available, and include that value in the report; or

(ii)      state in the report that the matter is unresolved; and

(c)in respect of loss or damage consequential on emotional or physical harm, either—

(i)determine the value of the loss or damage on the evidence available, and include that value in the report; or

(ii)      state in the report the respective positions of the offender and the person who suffered the loss or damage, and that the matter is unresolved.

(4)     Despite subsections (1) to (3), the person who suffered the harm, loss, or damage is not obliged to meet with the offender or otherwise participate in the preparation of the report.

(5)     The person who prepared a report under this section must give a copy to the person who suffered the harm, loss, or damage unless the court orders otherwise.

(6)     Failure to give a copy of any report in accordance with subsection (5) does not affect the validity of the proceedings in a court or of any order made or sentence imposed by a court.

[45]     It  will  be  observed  that  s  34  requires  that  a  reparation  report  contain  a significant amount of information about the respective positions of offender and victim, including detail of the claims made by the victim for reparation in respect of actual financial loss, and emotional physical harm.

[46]   In this case the reparation report produced to the Court was somewhat abbreviated.  It merely stated the amounts sought by the victims, and recorded that no agreement had been reached.

[47]     At the sentencing hearing the Judge asked the appellant’s partner and her father questions designed to elicit the make-up of their claims for reparation, and as the Crown concedes, simply reflected their claims in his decision.  In the case of the

appellant’s partner an award was made of $5000 reparation in respect of the assault charge.   That figure is expressed to cover the costs relating to her injuries and medical expenses, grossed up to reflect the Court’s view of the emotional harm she suffered.

[48]   On the intentional damage charges, the Judge awarded $15,000 to the appellant’s partner and $1,449 to her father.   In the latter case it seems the figure concerned simply reflected the claimed value of the damaged and destroyed items. In the case of the appellant’s partner however, the figure of $15,000 was expressed to cover not only the victim’s actual losses, but also an unquantified figure for emotional harm.

[49]     Section 28(3) of the Sentencing Act entitles an offender to tender evidence on any matter referred to in a reparation report prepared under s 33 of the Act.  Ms Price also represented the appellant at the sentencing hearing in the District Court.  She advised this Court that the District Court was aware that ownership of some items, notably an electric guitar and accessories, was in dispute, and that the value of a number of items in respect of which reparation was claimed by the victims, was also not accepted by the appellant.   But the Judge declined to take evidence on these issues.  Neither was the learned Judge prepared to accept evidence provided by the appellant as to his current financial circumstances.

[50]     The rights of the parties to a claim for reparation were discussed in detail in the judgment of the Court of Appeal in Gray v R CA356/93 13 November 1996. Although  that  decision  preceded  the  Sentencing  Act  2002,  nothing  in  the  Act deprives the decision of its relevance.  The relevant provisions in the Sentencing Act were formerly to be found in ss 22 and 23 of the Criminal Justice Act 1985.

[51]     The Court observed that while an oral hearing on reparation matters was not mandatory, the Court is bound to receive evidence tendered by an appellant.  On occasion it may be appropriate that the Court direct the Crown (for the victims), and the appellant to give their evidence in affidavit form in accordance with a timetable order.  The Court in Gray further noted that reparation is part of a sentence imposed by the Court, and the amount of reparation ordered will not necessarily equate with

the amount of a victim’s loss, because the Court may in the exercise of its discretion, impose a lesser figure by way of reparation.

[52]     Where, as here, there is a clear divergence between the parties in respect of the amount claimed, and indeed the ownership of relevant items, natural justice will require a hearing.

[53]    In the present case the appellant clearly put in issue, during the defended hearing, not only the ownership of certain of the items alleged to have been damaged but also their value.  The Court was also aware that these issues were in dispute by reason of the contents of the somewhat abbreviated reparation report.  In all the circumstances the Court was bound to convene a hearing at which the issues could have been resolved in accordance with the rules of natural justice.   That did not occur.

[54]     As the Crown properly concedes, the reparation orders ought not to stand. Those orders are accordingly quashed.  The appropriate course is to remit the matter back to the District Court.  The question of reparation is therefore remitted to that Court for a rehearing on the question of the quantum of the reparation which it is appropriate for the appellant to pay his partner and her father.  Admissible evidence ought to be tendered in support of, and in opposition to, the reparation claims.  It is a matter for the Court as to whether that evidence is tendered in the first instance either by affidavit or in the form of oral evidence.  However, given the issues plainly in dispute, there is a need for an oral hearing which would include a right to cross- examine, and the right to make submissions on matters of ownership, value and the appropriate quantum of reparation in the light of all the relevant circumstances.

C J Allan J