DUFFY v POLICE [2018] NZHC 2590

DUFFY v POLICE [2018] NZHC 2590 [4 October 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-000250[2018] NZHC 2590BETWEEN MICHAEL FRANCIS DUFFYAppellantAND NEW ZEALAND POLICERespondentHearing: 2 October 2018Counsel: DM George for AppellantBR Northwood and J Lee for RespondentJudgment: 4 October 2018JUDGMENT OF DOWNS JThis judgment was delivered by me on Thursday, 4 October 2018 at 10 am.Registrar/Deputy RegistrarSolicitors/Counsel:DM George, Auckland.Crown Solicitor, Auckland.The appeal[1] Mr Michael Duffy was convicted of injuring with intent to injure after a Judge-alone trial before Judge B A Gibson.1 The victim was Mr Duffy's partner. The Judgeimposed a term of 19 months' imprisonment.2 Mr Duffy appeals conviction. Hecontends he was wrongly tried without a lawyer, and hearsay evidence wronglyadmitted.3 The victim died before trial. Her 111-call and signed scene statement wereintroduced as evidence. Mr Duffy also appeals sentence on the basis it is manifestlyexcessive.[2] The facts are simple. And, best unveiled through the grounds of appeal.Conviction appealTrial without counsel[3] The alleged offending occurred on 11 July 2016. Mr Duffy was charged thenext day. He was tried on 14 February 2018.[4] Ms Amber McLean had acted for Mr Duffy, on legal aid, since October 2016.But, on the morning of trial, Ms McLean sought to withdraw. She told Judge Gibsonthere was "now difficulty with her instructions from the defendant".4 Mr Duffy soughtan adjournment. The Judge dismissed the application.[5] Ms Dana George contends the Judge was wrong to do so, and the trial unfairin the absence of legal representation. Ms George submits Mr Duffy had notmanipulated the system, and reasonably assumed the trial would be adjourned withMs McLean's late withdrawal. Ms George notes Mr Duffy told the Judge he had leftpapers relevant to the case at home, and was not ready to begin.51 R v Duffy [2018] NZDC 2809.2 R v Duffy [2018] NZDC 16252.3 The Judge's verdict is also challenged as unreasonable.4 R v Duffy, above n 1, at [6].5 The transcript confirms this.[6] Recitation of applicable law need not extend beyond the Supreme Court'sdecision in R v Condon.6 That Court held if a defendant is wrongly tried without alawyer, a presumption of a miscarriage of justice arises. That Court also held it is notopen to the defendant to assert the right to counsel but then, by conduct, repudiate thatright's exercise, or by similar conduct, create a situation "in which, on a properbalancing of various interests, further delay in the holding of the trial is not to betolerated".7 Consequently, an appellate Court "must make a determination concerningthe circumstances in which the [defendant] came to be tried without a lawyer".8 If thedefendant was wrongly tried without one, the prosecution must satisfy the Court thetrial was fair despite the absence of representation. Otherwise, no such presumptionarises.[7] I accept Ms George's submission Mr Duffy was not seeking to manipulate theprocess by seeking an adjournment. However, I conclude the Judge was not wrong toproceed for the reasons he gave, and other considerations implicit to that decision.[8] The charge was already 18 months old. Two witnesses had died since thealleged event: the victim and a doctor who had treated her. Mr Duffy's late instructionshad caused Ms McLean to withdraw. The charge was not complex. Nor were relatedcircumstances. Most importantly, adjournment risked further delay. Mr Duffy had:(a) Breached bail five times (on 18 July 2016; 6 October 2016; 27 October2016; 6 February 2017; and 3 May 2017).(b) Failed to appear on three occasions. First, on 16 August 2016;Mr Duffy was arrested on 21 September 2016. Second, on25 November 2016; Mr Duffy was arrested on 20 December 2016.Third, on 6 March 2017; Mr Duffy was arrested on 1 April 2017.[9] Ms George observes Mr Duffy last failed to appear on 6 March 2017.However, there were then only a handful of appearances until trial, and Mr Duffy6 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300.7 At [80].8 At [81].breached bail on 3 May 2017. It was open to the Judge to conclude there was a realrisk Mr Duffy may again fail to appear, and in doing so, cause more delay.[10] This conclusion is not affected by the brief affidavit Mr Duffy filed last week,reception of which is unopposed by Police. Mr Duffy says his relationship withMs McLean had not broken down. This observation is inconsistent with Ms Mclean'sadvice to the District Court.9 And, Mr Duffy has not waived privilege. Mr Duffy alsosays he had "at least one witness he wished to call". The affidavit does not identifythe proposed witness, or the subject matter of their proposed evidence. Mr Duffy alsosays he had documents at home which he needed. The affidavit does not append these,or identify what they were. The same is true of Mr Duffy's observation he "had a lotof information about the reliability of the complainant to put before the Court". It isnot open to a litigant to assert prejudice through inability to offer evidence withouteven identifying what that evidence is.10[11] In any event, I am satisfied the trial was fair even though Mr Duffy did nothave counsel.[12] The case was straight-forward. The prosecution alleged Mr Duffy repeatedlypunched the victim in the head, breaking her nose. There were no eye-witnesses, albeitPolice were on the scene within (five) minutes. Mr Duffy was there. So too the victim.Her face was covered in blood. She was still on the telephone to Police. Mr Duffy'scase was that he was asleep, and the victim must have fallen while intoxicated. Therewas evidence she and he had been drinking. Such simplicity meant the assistance ofcounsel was not a necessary incident of a fair trial. Relatedly, the only difficultaspect—admissibility of the victim's statements—was dealt with on a pre-trial basis,and when Mr Duffy had representation.[13] The system operated as it should with an unrepresented defendant. Theprosecutor took care to ensure only admissible evidence was adduced. For example,when Mr Duffy testified and volunteered he had a conviction for assaulting the victim,9 Ms McLean foreshadowed her application to withdraw in a brief email to the Court the nightbefore trial, saying there had been "a breakdown in the lawyer-client relationship".10 R v Hirchkop CA506/05, 6 July 2006.Mr Northwood informed the Judge this evidence was inadmissible. The Judge agreed.Similarly, the Judge assisted Mr Duffy in his cross-examination of medical witnesses,and when Mr Duffy testified, adduced much of his evidence-in-chief.[14] The only obvious defence evidence that could have been adduced was adduced.Mr Duffy testified. Materially, Ms George has not identified, nor sought to introduce,evidence allegedly missing from trial; see [10]. And, the prosecution case was verystrong, a point that will become apparent shortly.[15] Ms George observes Mr Duffy is middle-aged, but not a well-educatedprofessional. I agree. However, Mr Duffy stated his case to the Judge clearly. Thetranscript implies Mr Duffy is more articulate than many defendants in this context.[16] The one blemish concerns Mr Duffy's election. The Judge explained toMr Duffy he may give evidence, but was not required to. And, the Judge explainedMr Duffy would be cross-examined if he did. However, Mr Duffy was not given ashort adjournment to consider his election. As Mr Duffy was self-represented, itwould have been better if he had been given time to decide, say, 15 minutes. However,when the Judge asked Mr Duffy what he wanted to do, he replied immediately, sayinghe wanted to give evidence. The blemish is only that. Again, the trial was fair.Wrongful admission of the victim's statements?[17] When a witness is unavailable at trial—as the victim was—her or his evidenceis admissible if the circumstances relating to its taking provide reasonable assuranceof its reliability, and the probative value of the evidence outweighs its prejudicialeffect.11[18] Before trial, Judge S F Fleming ruled the victim's 111-call and signed Policestatement, which was made at the scene, admissible on this basis.12 Ms Georgecontends this evidence should not have been admitted: the victim had been drinking;her evidence was central; and Mr Duffy prejudiced through inability to cross-examine.11 Evidence Act 2006, ss 8 and 18.12 R v Duffy [2017] NZDC 17992.[19] The 111-call and signed statement were consistent with each other. Eachdescribed a sustained attack by Mr Duffy, involving repeated punches to the face. Thevictim's bloodied presentation was consistent with an assault; so too blood spots bythe back door (which is how she described leaving the house); and the victim's injuries.She sustained a broken nose, minor swelling to the back of the head, bleeding in orabout an eye socket, a minor cut to the back of her wrist, and bruising to the hand. Allthis was evident to Police within minutes of the alleged assault. The victim signed herstatement while they were still at the scene, after confirming its accuracy and truth.So, the circumstances relating to the taking of the evidence provide reasonableassurance of its reliability, and it was of high probative value.[20] These conclusions are not affected by the fact the victim had been drinking.She made this clear to the Police in her statement, and was coherent in her emergencycall.13[21] As to prejudice, doubt attaches to what could have been achieved throughcross-examination beyond that achieved at trial. A doctor accepted the victim'sinjuries to the hand and wrist could have been caused by a fall, a concession consistentwith Mr Duffy's case. Mr Duffy highlighted the victim's consumption of alcohol, andestablished her nose could have been broken earlier (through inability to precisely datethe injury). However, there is no reason to believe the victim would have resiled fromher account, or otherwise accepted the defence case.[22] Ms George submits Mr Duffy would have questioned the victim about previouscalls by her to Police, and alleged failures by her to prosecute complaints. Thissubmission lacks evidential foundation, as there is no evidence the victim hadwithdrawn or failed to pursue previous Police complaints. In any event, the dangersof this strategy are obvious in the context of alleged domestic violence, particularly asMr Duffy had been convicted of an earlier assault on the victim.[23] In short, this was a clear case for admission of the victim's statements asreliable hearsay. The emergency call was an integral part of events, and the victim's13 A blood specimen revealed the victim was three times over the limit. However, the doctor said itdid not necessarily follow she was intoxicated.statement taken in their immediate aftermath. Each supported the other. Police wereon the scene within minutes. Like the Judge who determined the pre-trial application,I am satisfied this evidence was admissible even though the victim was unavailable.An unreasonable verdict?[24] Ms George contends the Judge erred in his assessment of the evidence to suchan extent a miscarriage of justice has occurred.14 Ms George argues the defence thesisof a fall ought to have caused the Judge to have a reasonable doubt about guilt.[25] The submission overlooks the evidence of the victim, which the Judge wasentitled to accept. Once accepted, a guilty verdict was inevitable. The victimdescribed a serious assault by Mr Duffy, consistent with an intention to cause bodilyharm.Sentence appeal[26] The Judge considered Mr Duffy had engaged in "serious violence",15 withinband two of Nuku v R.16 The Judge identified several aggravating factors: an attack tothe head; serious injury; and victim vulnerability. The Judge also identified"premeditation" as a possible aggravating factor.[27] The Judge adopted a starting point of 21 months' imprisonment, uplifted byone month for Mr Duffy's earlier assault on the complainant. The Judge discountedthe sentence by three months in recognition of Mr Duffy's "general health condition,and other factors mentioned in the pre-sentence report".[28] Ms George submits the sentence is manifestly excessive for a host of reasons.It is sufficient to refer to one.14 Criminal Procedure Act 2011, s 232(2)(b).15 R v Duffy, above n 2, at [3].16 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.[29] The evidence does not support the proposition the offending was premeditated.Police accept as much. Relatedly, the starting point appears inconsistent withauthority.17[30] In Tonihi v Police,18 the defendant injured his partner with intent to injure: hefractured two of her teeth, gave her two black eyes, other "mild" facial bruising,19 andleft her with a suspected broken nose. As in this case, the victim had been drinking.The High Court concluded a starting point of two years and two months wasmanifestly excessive. An 18-month starting point was adopted.[31] In B v Police,20 the defendant injured his partner: he pushed her to the floor,threw her down two sets of stairs, dragged her into the kitchen, repeatedly punchedher to the face, applied pressure to her throat (so she could not breathe), and thenpunched her in the buttocks. Her injuries were like the victim's in Tonihi. It wascommon ground the starting point ought to have approached two years' imprisonment.Plainly, B's offending is more serious than Mr Duffy's.[32] These cases suggest the starting point ought to have been 18 months'imprisonment, not 21 months' imprisonment. Applying the same uplift and deductionsas the Judge produces a sentence of 16 months' imprisonment.Result[33] The sentence appeal is allowed. The substituted sentence is 16 months'imprisonment. Mr Duffy still has leave to apply for home detention.[34] The conviction appeal is dismissed...Downs J17 Neither party cited any sentencing cases. Those above pre-date Nuku, but nothing turns on this.18 Tonihi v Police [2013] NZHC 737.19 At [1].20 B v Police HC Hamilton CRI-2009-470-01, 16 February 2009.