WIRI v NEW ZEALAND POLICE [2018] NZCA 614

WIRI v NEW ZEALAND POLICE [2018] NZCA 614 [19 December 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA391/2018[2018] NZCA 614BETWEEN ROBERT KINGI JAMES WIRIApplicantAND NEW ZEALAND POLICERespondentCourt: Brown, Courtney and Katz JJCounsel: Applicant in personJ A Eng for RespondentJudgment:(On the papers)19 December 2018 at 11.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] On 28 February 2018 the applicant, Mr Wiri, was convicted inthe District Court at Rotorua on one charge of resisting a constable acting in theexecution of his duty.1 His appeal to the High Court was dismissed.21 Police v Wiri [2018] NZDC 5696.2 Wiri v Police [2018] NZHC 1222.[2] Mr Wiri seeks leave under s 237 of the Criminal Procedure Act 2011 for asecond appeal to this Court. Section 237(2) provides that this Court must not giveleave for a second appeal 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 theappeal is heard.[3] The application for leave to appeal was not filed until 10 July 2018 and hencean application for extension of time was required. The Crown did not object to anextension of time which was granted by Gilbert J on 27 September 2018.Background[4] The charge arose from an incident on 30 June 2017 at the home of Mr Wiri'ssister and her partner where Mr Wiri was living. Their evidence was that Mr Wiri wasmaking a commotion in the middle of the night. He was drunk and belligerent andthe police were called. There was a dispute as to what occurred when the policeendeavoured to arrest Mr Wiri. The two police officers gave evidence that Mr Wiriwas told to put his hands behind his back but instead he put his hands up in the air andmoved away from the officers. A struggle ensued and eventually Mr Wiri was placedface down on the bed in his bedroom and handcuffed with his hands behind him.[5] Mr Wiri gave a different version of events. He indicated that he was preparedto be handcuffed with his hands in front of him, that he was punched, and put in aheadlock, and the police tried to force his hands behind his back. The police officersdid not agree, maintaining that Mr Wiri was trying to keep his hands away so as toavoid being handcuffed.[6] Mr Wiri did not impress Judge Ingram as a witness, the Judge stating that he"unhesitatingly" accepted the evidence of the police officers for reasons which he gavein his decision.33 Police v Wiri, above n 1, at [6]–[8].[7] On appeal argument was advanced for Mr Wiri that he was justified in usingsuch force as he did because he was acting in defence of himself and, in thecircumstances as he believed them to be, such use of force was reasonable.After reviewing the evidence Brewer J concluded that the appeal should be dismissedstating:[10] In my view, it was open for Judge Ingram to disbelieve Mr Wiri andaccept the evidence of the police officers. The evidence picture, therefore,was that Mr Wiri was physically trying to avoid being handcuffed andthe Police used reasonable force, in the course of effecting an arrest, to applyhandcuffs to Mr Wiri. On the evidence as accepted by Judge Ingram, therewas no credible narrative going to self-defence.The application for leave[8] In support of his application for leave Mr Wiri filed a substantial affidavit witha number of exhibits. Although in form an affidavit, it was in the nature of submissionsand we received it as such.[9] The first 20 paragraphs of the affidavit revisited the events of the evening of30 June 2017. The next section referred to fresh evidence which Mr Wiri wished toadduce on appeal. The proposed evidence comprised medical notes from his generalpractitioner, medical notes relating to prior surgical treatment in 2012 and 2014 and aletter confirming his completion of alcohol counselling.[10] Mr Wiri explained that, because the lawyer who had previously acted for himin the High Court had retired, Mr Wiri has no legal representation in relation to thepresent application. Attached to his affidavit was a synopsis of submissions for theproposed appeal which Mr Wiri explained had been prepared by his former lawyerprior to his retirement on 30 June 2018. The Crown did not oppose Mr Wiri's requestthat the Court consider the contents of that synopsis of submissions.[11] The balance of the affidavit under the heading "Legal RepresentationBackground and Remedy" discussed aspects of the history of Mr Wiri's legalrepresentation. It also made brief reference to the hearing in the District Courtincluding citing an example of what was described as the Judge's "negative attitude"towards him.[12] In the affidavit Mr Wiri complained that there was a serious conflict of interestat the High Court appeal by reason of the fact that the Crown prosecutor was a relativeand friend of his. He also contended that the High Court Judge did not take his appealseriously.Discussion[13] The synopsis of submissions of Mr Wiri's former lawyer again traversed thefacts before focusing on the issues of what amounts to "resisting" arrest and theasserted defence of self-defence. It was in the latter context that reference was madeto the proposed new evidence, posing the question whether Mr Wiri's subjective beliefwas reasonable that having his hands forced behind him would cause him pain:28. The appellant submits that it is. There is now fresh medical evidenceas well as the evidence of the appellant, as well as the evidence ofMr Bartlett. He confirmed the appellant had had a back operation andwas taking strong pain medication. The appellant's affidavit containsfresh medical evidence of this back operation and his pain medication.This evidence also validates his subjective belief that forcing his armsbehind his back would cause pain to his back injury.29. In the circumstances the appellant submits it is reasonable for him toform the subjective belief that forcing his arms behind his back wouldcause pain. The fresh medical evidence contained in the appellant'saffidavit confirms that he was taking strong medication for athoracotomy both before and after 30 June 2017.[14] The Crown submitted that the proposed new evidence is not fresh. Mr Wirigave evidence at the trial. He explained that he was on medication from a collapsedlung operation, that the officers' attempt to force his hands behind his back caused himpain and that he tried to stop the officers doing so. He was questioned at some lengthby the Judge about tendons in his upper back which he deposed were damaged, themedication which he took for pain relief and a number of previous surgical episodes.[15] In consequence it was Mr Eng's submission that, even if the proposed evidencewas fresh, it would not have been capable of changing the outcome of the trial.The Judge was well aware of the defence case as far as the implications of pain wereconcerned but crucially he rejected Mr Wiri's account and unhesitatingly accepted thepolice officers' account where they diverged. There was nothing in the new evidencewhich rendered Mr Wiri's account any more credible or that of the police officers anyless credible.[16] We agree with the Crown's submission that, given the evidence of Mr Wiri atthe trial, the proposed new evidence is not fresh. Nor do we consider that it wouldsupport a different conclusion on the charge of resisting arrest. The allegationconcerning an alleged conflict of interest was not developed. There is no indicationthat it was raised with Brewer J.[17] Having reviewed the transcript of evidence, the judgments of the lower Courts,Mr Wiri's affidavit and the exhibits (including the draft legal submissions), we aresatisfied that the decisions of the lower Courts were correct and consequently there isno risk that a miscarriage of justice will occur if there is not a further appeal in thismatter. Furthermore there is nothing about the proposed appeal which involves amatter of general or public importance. In those circumstances the application forleave must be declined.Result[18] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington for Respondent