WELLS v R [2015] NZCA 528

WELLS v R [2015] NZCA 528 [10 November 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA500/2015[2015] NZCA 528BETWEEN MEGAN LEE WELLSApplicantAND THE QUEENRespondentHearing: 3 November 2015Court: Randerson, Lang and Clifford JJCounsel: Applicant in PersonZ R Johnston for RespondentJudgment: 10 November 2015 at 3:00 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Randerson J)Introduction[1] The applicant Ms Wells was convicted in the District Court of one charge of assault under s 196 of the Crimes Act 1961 after a trial before Judge Field sitting without a jury.1 She was ordered to come up for sentence if called upon within six months. Ms Wells' subsequent appeal to the High Court was dismissed byBrewer J.21 Police v Wells DC Auckland CRI-2013-004-9316.2 Wells v New Zealand Police [2014] NZHC 1825.[2] Ms Wells now seeks leave to bring a second appeal to this Court under s 237 of the Criminal Procedure Act 2011 which provides:237 Right of appeal against determination of first appeal court(1) A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person's firstappeal under this subpart.(2) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart 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 decisions in the courts below[3] The complainant Mr Ford is the applicant's neighbour. Judge Field accepted Mr Ford's evidence that he was backing his car out of his driveway when theapplicant approached. She banged on the rear window of Mr Ford's car and later punched him several times about the head and face through the driver's openwindow. The Judge was satisfied photographic evidence produced by the police supported the injuries described by Mr Ford.[4] Ms Wells was self-represented and although given ample opportunity to give evidence herself, did not do so. However, she made it clear to the Judge that her defence was that the complainant had tried to run her down with his car and that shedenied punching the complainant. She asserted Mr Ford's injuries must have arisenfrom some other cause such as a sudden stop while driving or domestic violence.[5] When the applicant's appeal was called in the High Court, she did not appear. Brewer J decided not to strike out the appeal for want of prosecution but to determine the case on the papers. These included points on appeal Ms Wells had filed. Brewer J thoroughly canvassed the course of proceedings in the District Court,the evidence presented and Judge Field's findings. He rejected the applicant's claimthat her trial was unfair because she was not legally represented. He was satisfied the applicant was afforded a reasonable opportunity to obtain legal representation,noting that the trial had been adjourned part-heard from 8 September 2014 until it was concluded on 12 December 2014. This break of over three months was also to enable Ms Wells to pursue any disclosure issues she may have had.[6] Brewer J was satisfied the issues were simple; the applicant fully understood the case; and she had cross-examined the complainant on issues relating to credibility. He found that Judge Field had assisted Ms Wells in a number of ways to present her case. Brewer J was not persuaded that other points raised by Ms Wells including disclosure issues and concerns about the accuracy of the court transcript had any bearing on the outcome of the case.The application in this Court[7] Ms Wells produced a medical certificate dated 26 October 2015 nearly three months after the date scheduled for her High Court appeal on 3 August 2015. The certificate said Ms Wells had a medical condition which caused fatigue and could cause forgetfulness. The opinion was expressed that these factors had contributed to her missing the court appearance before Brewer J. Ms Wells confirmed to us that she was aware of the hearing date for the appeal but did not take any steps to inform the Court she was unwell or that she was unable to attend on the appointed date. She did not seek an adjournment of the appeal. We are satisfied that it was her obligation to contact the court and seek an adjournment if she were unable to attend. Her failure to do so cannot amount to a miscarriage of justice.[8] Ms Wells again raised concerns about the accuracy of the 71 page transcript of the hearings in the District Court. She acknowledged she had been given the opportunity to listen to the audiotapes of those proceedings and had done so with the assistance of a third party before the date of hearing of the appeal in the High Court. Despite this, she did not notify either the High Court or the Crown of any inaccuracies. Nor had she drawn these to the attention of this Court or Ms Johnston prior to the hearing before us.[9] Ms Wells showed us copies of transcripts with errors tagged. We are not persuaded that any errors in the transcript are material and, as Brewer J pointed out, they could not affect the fairness of the trial in any event. There were only twowitnesses (the complainant and a police officer) and the record of their evidence is plain.[10] The applicant again raises disclosure issues but we are not persuaded by this point. As noted, the hearing in the District Court was adjourned in part so that disclosure issues could be resolved. Ms Wells raised a point about the absence ofany audio recording of a 111 call to the police made by the complainant's wife afterbeing asked to do so by the complainant. Ms Wells had not previously sought an audio recording of this call and Ms Johnston pointed out that a report had been provided to Ms Wells by the police which confirmed the essential content of the call.Again this could not have affected the fairness of the hearing. The complainant'swife did not see the incident and there is nothing to suggest she could provide material evidence.[11] Ms Wells' complaint that she was disadvantaged by the absence of a policeofficer who had died before the hearing in the District Court has no substance. Nor is there any evidence to support her assertion that the police failed to call other material witnesses. There is no evidence any such witnesses could have assisted and, if they could, Mr Wells could have called them herself.Conclusion[12] In view of the fact that Ms Wells did not attend her appeal in the High Court, we have fully considered all the points raised by her and have ourselves reviewed the record of the hearing in the District Court. The trial has been thoroughly considered in both lower courts. We see no reason to disagree with any of the conclusions reached below. We are satisfied in terms of s 237(2) of the Criminal Procedure Act that the appeal does not involve a matter of general or public importance and we are not persuaded that a miscarriage of justice may have occurred or may occur unless the appeal is heard.[13] Accordingly, the application for leave to bring a second appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent