KNIGHT v NEW ZEALAND POLICE [2019] NZCA 482

KNIGHT v NEW ZEALAND POLICE [2019] NZCA 482 [4 October 2019]NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFTHE NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARSOF COMPLAINANT REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA296/2019[2019] NZCA 482BETWEEN PETER GRAHAM KNIGHTApplicantAND NEW ZEALAND POLICERespondentHearing: 10 September 2019Court: Clifford, Collins and Woolford JJCounsel: Applicant in personF R J Sinclair for the RespondentJudgment: 4 October 2019 at 3.00 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] Following a defended hearing in the Porirua District Court on 24 May 2018,Peter Graham Knight was convicted by Judge Harrop of three charges of breachinga protection order.1 He was subsequently sentenced to 75 hours' community work and12 months' supervision.[2] Mr Knight appealed against conviction to the High Court. Following a hearingon 22 May 2019, Mr Knight's appeal was dismissed by Grice J in a judgment dated5 June 2019.2 He now seeks leave to bring a second appeal. He represents himself.Grounds of complaint[3] As best as we are able to ascertain from Mr Knight's written and oralsubmissions, he has the following complaints:(a) Police have withheld the initial statement of the complainant in breachof the Criminal Disclosure Act 2008. Mr Knight says he asked twoseparate lawyers to obtain the statement (presumably, the two lawyerswho represented him at trial and on appeal).(b) The barman at the Waterfront Bar, the scene of the second incident, hadbeen spoken to by police, but no statement from him has been disclosed.(c) There were several (unspecified) errors in the trial transcript fromthe District Court.(d) At trial, Sergeant Atwood incorrectly asserted that he was the arrestingofficer. After Mr Knight lodged a complaint with the IndependentPolice Conduct Authority, Sergeant Atwood now states that it wasa joint arrest with Detective Deehan. Detective Deehan should havebeen called at trial.(e) Constable Drysdale incorrectly made a log at the police station whichstates that Mr Knight was taken to the garage for a chat.1 Police v Knight [2018] NZDC 16092.2 K v Police [2019] NZHC 1258.(f) The complainant had lied to police about the lack of contact withMr Knight after the protection order had been made. This was provenwhen telephone records were obtained from Spark.(g) At trial, the complainant lied about training for her job on Tui Road, thescene of the third encounter between the complainant and Mr Knight.The Judge was, therefore, misled into drawing an inference thatMr Knight knew the complainant would be there that day.(h) Trial counsel failed to follow instructions to challenge police witnessesabout their evidence. Mr Knight itemises a number of matters which,he says, are relevant to the issue of inadvertent contact versus deliberatecontact and material contradictory evidence which, he says, shouldhave been put to police witnesses — for example, when eye contactwas first made between the complainant and Mr Knight during the firstincident.(i) Trial counsel wrongly pressured Mr Knight into not giving evidenceand did not advise him that he had the onus to prove "reasonableexcuse".Second appeal[4] Section 237 of the Criminal Procedure Act 2011 provides that:237 Right of appeal against determination of first appeal court(2) The High Court or the Court of Appeal must not give leave for asecond 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 occurunless the appeal is heard.[5] Assessed against the standard set out in McAllister v R,3 Mr Knight's appealdoes not raise a matter of general or public importance justifying a second appeal.3 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].Mr Knight's complaints are factual in nature and their significance is confined to thecircumstances of his case. It remains then to consider whether a miscarriage of justicemay have occurred or may occur, unless the appeal is heard.Miscarriage of justice?[6] As to the complaint that the police have withheld the initial statement ofthe complainant, Mr Knight was provided with a formal written statement ofthe complainant prior to trial. She was also cross-examined at some length byMr Knight's lawyer at the District Court trial. Although Mr Knight states that he wasshown a copy of the original statement when he was first spoken to by the police, heis not able to say how the initial statement (if one exists) differs from eitherthe complainant's formal written statement or her evidence at trial. It is speculationto suggest that there may be significant differences which would impact uponthe complainant's credibility or reliability.[7] The barman at the Waterfront Bar was not called to give evidence by the police.It is not known what he would have said and whether or not it would have had anysignificance at trial. Mr Knight has not produced any evidence to show that thebarman saw anything of note during the second incident.[8] Mr Knight has not specified the errors in the trial transcript from theDistrict Court, but such errors will not have affected the decision of Judge Harrop,who had the benefit of hearing the evidence as it was being given before he made hisdecision.[9] At trial, Sergeant Atwood was cross-examined about the circumstances of thearrest and who performed it. This was, however, merely background and provides nobasis to suppose that the trial has miscarried. Similarly, there is no significance in thefact that Constable Drysdale may have incorrectly made a log at the police station,which stated that Mr Knight was taken to the garage for a chat. This was completelyunrelated to any issue at trial.[10] The complainant's credibility was front and centre at the trial. Judge Harropfound the evidence of the complainant and her friend, who also gave evidence, to be"credible, reliable and materially unchallenged".4 This finding was not challenged onappeal to the High Court. On the evidence before him, the District Court Judge waswell able to be satisfied "that the evidence indicates that each of three events,in isolation, amounted to the engineering of deliberate contact with [the complainant]by Mr Knight".5[11] The complaints about trial counsel come down to dissatisfaction with hiscross-examination of police witnesses and Mr Knight's election not to give evidence.We note that both these issues were squarely addressed in the High Court appeal.The High Court had affidavits from both Mr Knight and trial counsel. The Court notedthat Mr Knight's affidavit evidence was not materially different in relevant aspects tothat of trial counsel, although the emphasis was different.6[12] The High Court considered that there was no error in the advice of the triallawyer not to give evidence. The Court stated:[46] The tactical decisions made by trial counsel at the time were open tohim. They were those that a competent lawyer could have made in thecircumstances. Counsel was exercising his best judgment in thecircumstances at the time. Simply because in hindsight the decision did notproduce a favourable outcome does not mean there has been a miscarriage ofjustice.(Footnote omitted.)[13] Mr Knight has provided no basis for concluding, contrary to the finding ofthe High Court, that the approach of trial counsel involved errors, let alone errorscausing a miscarriage of justice.Result[14] The criteria for leave to appeal are not met. Mr Knight's application for leaveto bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent4 Police v Knight, above n 1, at [4].5 At [30].6 K v Police, above n 2, at [38].