HANDY v NEW ZEALAND POLICE [2017] NZCA 557

HANDY v NEW ZEALAND POLICE [2017] NZCA 557 [5 December 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA101/2016[2017] NZCA 557BETWEEN JARVIS-MONTREL HANDYApplicantAND NEW ZEALAND POLICERespondentHearing: 16 November 2017Court: Brown, Courtney and Toogood JJCounsel: Applicant in personJ E Mildenhall for RespondentJudgment: 5 December 2017 at 10.00 amJUDGMENT OF THE COURTA The application for an extension of time to file the application for leave tobring a second appeal is granted.B The application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Toogood J)[1] On 8 June 2015, the applicant, Jarvis-Montrel Handy, was convicted in theDistrict Court at Porirua by Judge Tompkins on a charge of assault under s 9 of theSummary Offences Act 1981.1 He sought a discharge without conviction under s 1061 New Zealand Police v Handy [2015] NZDC 10275.of the Sentencing Act 2002 but was instead convicted, fined $500 and ordered to paycourt costs of $130.2[2] Mr Handy's appeal against both the conviction and the refusal to grant adischarge without conviction to the High Court was dismissed by Simon France J in ajudgment dated 10 December 2015.3 He now seeks the leave of this Court underss 237 and 253 of the Criminal Procedure Act 2011 to bring a second appeal.4[3] Mr Handy's application was filed nearly a month out of time and consequentlyhe requires an extension. Because the delay is explained by Mr Handy being self-represented and the respondent does not assert to have suffered any prejudice, we grantthe extension of time to file the application for leave to bring a second appeal.Background[4] Mr Handy and the complainant were colleagues working in the same part oftheir employer's business. The evidence given in the District Court indicated that theyhad a disharmonious relationship; the complainant described Mr Handy as beingabusive to her in the months and days prior to the assault.[5] The complainant said in evidence that at about 2.30 pm on 2 August 2013,Mr Handy "barged into" her right shoulder while walking past her, knocking her offbalance. Although the complainant considered Mr Handy's actions to be deliberateand reported it to her manager, she made no formal complaint to police at that time.However, at around 3.15 pm that day, the complainant said Mr Handy deliberatelybarged into her again, dropping his shoulder and striking her around the cheek. Theimpact caused her to stagger backwards and end up half falling to the ground and halfleaning against a large stack of IT equipment boxes stored in the middle of the room.She was taken home immediately after the incident and received medical attention.She said in evidence she was in no state to return to work and suffered pain in her2 New Zealand Police v Handy [2015] NZDC 14736.3 Handy v New Zealand Police [2015] NZHC 3160.4 This Court has confirmed that an appeal against a refusal to grant a discharge without convictionis characterised as an appeal against both conviction and sentence: Jackson v R [2016] NZCA 627,(2016) 28 CRNZ 144.shoulders and left breast. She described herself as having serious flashbacks and saidshe was severely traumatised.[6] The sole issue in the District Court was whether the Police had proved beyondreasonable doubt that Mr Handy had applied intentional force to the complainant.Judge Tompkins was satisfied on the evidence of the complainant and a co-workerwho saw the assault that Mr Handy deliberately barged the complainant, rejecting MrHandy's account that it was the complainant who deliberately came into contact withhim.Appeal to the High Court[7] Mr Handy's appeal to the High Court against the conviction was founded on achallenge to the conduct of his trial counsel in the District Court. The challenge to thedecision that he should not be discharged without a conviction was founded onassertions that conviction would create difficulties with his employment prospects andwith immigration matters that would be out of all proportion to the gravity of theoffence.5[8] In dismissing the appeal, Simon France J found there was no error by trialcounsel: Mr Handy had been competently represented and in accordance with hisessential instructions; the agreed defence was put; and, Mr Handy's evidence properlyled. The Judge concluded that there was no other basis on which the finding that MrHandy was guilty of assault should be overturned.[9] On the issue of the discharge without conviction, Simon France J said:6[24] Mr Handy works in the security area and has done so for some time.The nature of the work he has been consistently engaged in requires that hehold a certificate issued by the Private Security Personnel Licensing Authority.The conviction will be a bar from holding such a certificate for a period ofseven years, although it is possible to seek a waiver.[25] Mr Handy resides in New Zealand pursuant to a residence class visabut with expired travel conditions. That means if he leaves New Zealand hewould need to make further immigration applications. Mr Handy is concernedabout the impact a conviction would have on such applications. The5 Sentencing Act 2002, ss 106 and 107.6 Handy v New Zealand Police, above n 3.restriction on his ability to travel is heightened by the fact that he was born inthe United States of America so has obvious reasons to want to be able totravel freely. Mr Handy also notes that he has physical and health restrictionsthat make the type of work he has been doing particularly suitable. He isotherwise limited in the range of suitable employment opportunities.[26] In the District Court the application was declined because the Courtconsidered the consequences of a conviction to be largely speculative andbecause of its assessment of the nature of the offence. Although charged unders 9 of the Summary Offences Act 1981, the Judge noted that the assault hadhad particularly significant effects on the victim. His Honour was of coursebest placed to assess that aspect, having seen and heard the witness.[27] I accept, perhaps more than the District Court, that there will beconsequences for Mr Handy. He will need to seek a waiver for a securitycertificate, and it will be a matter to be disclosed on any immigrationapplication. I do agree, however, that the conviction is not an absolute bar. Itwill weaken Mr Handy's position, but no more than that. I also note that thequantum of the fine, and the Act under which a charge was brought, will berecognised by decision makers as an indication of the level of offending.[28] The fact that it is a Summary Offences Act conviction certainlybrought the question of a discharge without conviction into play, but the Judgerecognised this and gave reasons why in this case there were reasons to gobehind the label, and see the gravity of the offending as more serious thanmight otherwise seem the case. I see no basis on appeal to interfere with thatassessment.Leave to bring a second appeal[10] We heard Mr Handy in full on both the leave application and on the merits ofhis proposed appeal against the High Court's decision. We address the question ofleave first. This Court may grant leave to bring a second appeal only if it is satisfiedthat the appeal involves a matter of general or public importance, or a miscarriage ofjustice may have occurred, or may occur unless the appeal is heard.7 As this Courtconfirmed in McAllister v R, the test for a second appeal is high.8[11] There is no suggestion in this case that the decision of the District Court or thejudgment of the High Court raise any matters of general or public importance. Theessence of Mr Handy's application is that a miscarriage of justice may have occurred,or will occur unless the appeal is heard.7 Criminal Procedure Act 2011, ss 237(2) and 253(3).8 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.Conviction[12] In respect of his conviction, Mr Handy raises essentially the same complaintsas to the conduct of his trial counsel as he did in the High Court, alleging that he failedto properly put, or adequately develop, the defence case. In particular, it is submittedthat defence counsel failed to raise any points to attack the credibility of thecomplainant or other witness to the assault. He submits Simon France J erred in hisassessment of trial counsel's conduct. However, Simon France J had the benefit ofhearing from Mr Handy's trial counsel, and we do not consider that there is anythingthat has been put forward to suggest he was wrong in his conclusion that Mr Handywas adequately represented at trial.[13] As to the finding that Mr Handy was guilty of assault, the case was oneinvolving a conflict between the evidence of the complainant and a co-worker on theone hand and Mr Handy on the other. It was a fact-specific issue and, in keeping withthe view of the High Court, we consider Judge Tompkins was entitled to make thecredibility findings that he did and conclude that the offence was proved beyondreasonable doubt.Discharge without conviction[14] In respect of the failure to grant a discharge without conviction, Mr Handyargues that Judge Tompkins overstated the gravity of the offending. But the Judge wasentitled to conclude on the evidence he heard that the assault was more than minor.The Courts below both took an orthodox approach to the question under s 107 of theSentencing Act of whether they were satisfied that "the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence."[15] We are not persuaded that the decision of either the District Court or theHigh Court under ss 106 and 107 was wrong and that a miscarriage of justice mayhave occurred or will occur.[16] Mr Handy's application for leave to bring a second appeal against bothconviction and sentence fails to meet the required threshold and must therefore bedeclined.Result[17] The application for an extension of time to bring the application for leave isgranted.[18] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent