WELLS v POLICE [2021] NZHC 3030

WELLS v POLICE [2021] NZHC 3030 [12 November 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000187[2021] NZHC 3030BETWEEN MEGAN LEE WELLSAppellantAND NEW ZEALAND POLICERespondentHearing: 8 November 2021Appearances:(via telephone)Appellant in personT Stuart for RespondentJudgment: 12 November 2021JUDGMENT OF DOWNS JThis judgment was delivered by me on Friday, 12 November 2021 at 12 pm.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Auckland.Copy to: Appellant.The appeal[1] Megan Wells was found guilty of assault and disorderly behaviour afterseparate hearings in the District Court. She received a sentence of supervision.1Ms Wells appeals conviction and sentence. She self-represents. Ms Wells had legalaid counsel but dispensed her services early in the appeal process.[2] A conviction appeal must be allowed if the defendant suffered a miscarriage ofjustice.2 A sentence appeal must be allowed if there is an error in the sentence and adifferent one should be imposed.3Background[3] Ms Wells and the complainants live on Waiheke Island. The offendingoccurred 15 January and 15 March 2018. The January incident gave rise to theconviction for assault; the March incident to the conviction for disorderly behaviour.The assault[4] On 15 January 2018 at approximately 6.30 am, Ms Wells was walking alongGreat Barrier Road. She was carrying a cup of coffee. Andrew Ford was driving tothe ferry to go to work (in Auckland city). His window was down as it was a warmday. His wife, Wendy, was in the car.[5] Mr Ford said he drove past Ms Wells slowly and as far away as possiblebecause of previous interactions with her. The Fords and Ms Wells are neighbours.[6] Mr Ford said as he passed Ms Wells, he felt hot liquid on his shoulder and sawliquid splatter onto the interior roof lining. Mrs Ford said she saw Ms Wells throw hercup of coffee over her husband.1 Police v Wells [2021] NZDC 10085.2 Criminal Procedure Act 2011, s 232(2)(c).3 Section 250(2).[7] Ms Wells gave a contrary account in evidence. She said Mr and Mrs Forddrove past her quickly and close; so close the car was "only 100" millimetres away.Ms Wells said she got a fright and spilled her coffee involuntarily.[8] Judge P Winter said Ms Wells' testimony was neither "compelling orbelievable".4 The Judge accepted the evidence of the Fords. He found Ms Wells"intentionally threw the coffee at Mr Ford through the window of his motor vehicleand that coffee struck Mr Ford on his shoulder".5Disorderly behaviour[9] Melanie Otto was walking back from Sandy Bay beach. She had her son in abuggy and their dog on a lead. Ms Otto said she saw Ms Wells walking on the sameside of the road. As with Mr Ford, Ms Otto attempted to give Ms Wells as much spaceas possible because of their previous dealings. Ms Otto said as Ms Wells walked pasther, she threw her cup of coffee over the dog's head. Ms Otto remarked that was notnice, to which Ms Wells replied, "I don't really like dogs".[10] Ms Wells did not give evidence. Her case was that Ms Otto's dog rushed ather and she instinctively threw the little remaining coffee in her cup at the dog.6Ms Otto did not accept these propositions in cross-examination.[11] Judge A C Roberts was satisfied Ms Otto "gave credible and reliableevidence"7. He convicted Ms Wells of disorderly behaviour.Sentencing[12] Judge Winter, the Judge who heard the assault charge, sentenced Ms Wells onboth matters. The Judge considered 12 months' supervision "the least restrictiveoutcome in the circumstances".8 The Judge also ordered reparation.4 Police v Wells [2021] NZDC 17906 at [31].5 At [35].6 Ms Wells helpfully confirmed at the appeal hearing this was her case in response to the charge.7 Police v Wells [2021] NZDC 10117 at [11].8 At [16].The appeal[13] Ms Wells filed the notice of appeal (in time) herself. It reads:Common assaultMiscarriage of justice / procedural grounds. Lawyer did not present relevantstatements. Judge Winter stated he would be sentencing on both chargesbefore 2 charge even heard. Lawyer Lucy Smith withdrew minutes beforesecond charge heard after being asked if there was a conflict of interest as herprincipal Anoushka Bloem was the complainant's accountant. Lawyerinterview conducted in Bloem and Associates Office (complainant isaccountant)Disorderly behaviourRefused legal representation by Judge Roberts.[14] The Legal Services Agency promptly appointed Ms Wells counsel. On10 May 2021, Ms Wells said she did not require counsel's services. On 13 May 2021,I granted leave to withdraw. Ms Wells then raised the absence of representation duringthe callover process as an impediment to the appeal being fixed.9 After severalopportunities to arrange representation, I fixed the appeal. Ms Wells self-represented.Her brief written and oral submissions matched the notice of appeal.Argument and analysis[15] Ms Wells was represented by Lucy Smith at the assault charge hearing beforeJudge Winter. Ms Wells contends Ms Smith's representation was inadequate.Ms Wells' one-page written submission says, "on the charge of alleged assaultevidence was not presented and Police summary not challenged by the lawyer and thelawyer did not assist in the defence".[16] There are difficulties with this contention. First, Ms Wells has not waived legalprofessional privilege in relation to Ms Smith. Consequently, I do not have Ms Smith'sresponse to the contention nor an account of Ms Wells' instructions to Ms Smith.Second, Ms Smith challenged the accounts of Mr and Mrs Ford. Ms Smith putMs Wells' account to them, as required by s 92 of the Evidence Act 2006. The Fordsdid not accept Ms Wells' account. Third, Ms Smith adduced the evidence of Ms Wells,9 See Minutes of 14 May, 11 June and 22 October 2021.who gave a contrary account to the Fords. That account mirrors Ms Wells' theory ofthe case in relation to Ms Otto and the disorderly behaviour charge: an instinctivereaction in response to something the complainant did.[17] At the hearing, I asked Ms Wells to identify, with greater particularity, hercomplaint about Ms Smith (despite the absence of a waiver of privilege). Ms Wellssaid she believed Ms Smith was having "a bad day" as Ms Smith did not challengeMr Ford about the shirt he was wearing that day. Ms Wells said the shirt did not looklike one an accountant would wear to work, and Mr Ford is an accountant. Forcompleteness, Mrs Ford photographed the shirt when she and Mr Ford arrived at theferry terminal. It had a coffee stain or stains. These photographs were placed inevidence.[18] There is nothing in this point because irrespective of what shirt Mr Ford waswearing that day, on Ms Well's case the spilt coffee was a product of instinctivebehaviour, not an intentional assault. So, questioning about the shirt could not haverelevance to anything in issue.[19] Ms Smith was also to represent Ms Wells at the hearing before Judge Robertsin relation to the charge of disorderly behaviour. However, at the beginning of thathearing, Ms Smith sought leave to withdraw. Ms Wells said Ms Smith did so as shehad just raised with Ms Smith her belief Mr Ford was the accountant for the lawyerwho employed Ms Smith.[20] Ms Wells has not sworn an affidavit in relation to this sequence or waivedprivilege in relation to Ms Smith. Again, I do not have Ms Smith's response either.[21] Ms Wells asked Judge Roberts for an adjournment. The Judge declined onebecause the case had been live "for 629 days".10 Ms Wells contends the Judge waswrong not to grant an adjournment and she suffered a miscarriage of justice in theabsence of representation.10 Police v Wells, above n 6, at [1].[22] A charge of disorderly behaviour is not punishable by imprisonment.Consequently, s 30 of the Sentencing Act 2002 and the allied Supreme Court judgmentof R v Condon are not on point.11 However, it is beyond argument a defendant isentitled to a fair trial irrespective of the gravity of the charge.12[23] I am not persuaded Judge Roberts was wrong to decline an adjournment. WhyMs Smith withdrew is not the subject of evidence. What is clear, however, is that thecharge had been adjourned many times. The alleged offence occurred 15 March 2018.The hearing before Judge Roberts was not until 27 October 2020. Delay was a veryimportant consideration. Moreover, the charge was simple. So too the alleged facts.Both factors support the Judge continuing with the hearing despite the absence ofrepresentation.[24] In any event, I am not persuaded Ms Wells has suffered a miscarriage of justice.Ms Wells defended each charge without reference to the evidence in relation to theother charge. That was a boon for Ms Wells because the similarity of the events andtheir temporal connection (the two incidents were only two months apart) mean it isall but certain the evidence of each could have been called by the prosecution inrelation to the other on a propensity basis.13 Throwing coffee over someone, or a pet,is unusual behaviour.14[25] This leaves one matter in relation to conviction. Ms Wells strongly believeseveryone involved in her cases was biased. For example, she believes the WaihekePolice did not investigate the incidents adequately because of their bias against her.[26] There is no evidence to support these concerns. Moreover, the little evidencegiven by Police in each case appears wholly unremarkable.11 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300.12 New Zealand Bill of Rights Act 1990, s 25(a).13 Evidence Act 2006, ss 40 and 43.14 Section 43(3)(f).Sentence appeal[27] Ms Wells' complaint about sentence is not directed at the sentence itself.Rather, it is that Judge Winter said he would be the sentencing Judge in relation toboth charges before the second had been decided. This, Ms Wells contends, isevidence of bias.[28] Presupposing the Judge said this, it is all but certain the comment reflectedscheduling needs rather than predetermination.[29] Ms Wells also notes the Judge incorrectly said both offences occurred the sameday (when they occurred two months apart).15 This is an error, but there is no reasonto believe it material. Nothing else the Judge said suggested the penalty was moresevere because he believed both offences occurred the same day.Result[30] The appeal is dismissed...Downs J15 Police v Wells, above n 1, at [1] and [4].